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EXTRACTS  FROM   NOTICES 


OF 


DAVID    DUDLEY    FIELD 


••••  ;' 
7  El. 


INDEX. 


Page. 

Adjournment  of  New  York  Legislature,  April  13, 
1894,  out  of  respect  to  the  memory  of   David 

Dudley  Field 17 

Address  of  Mr.  Field,  at  a  banquet  given  to  mem 
bers   of   the   Universal    Peace    Congress,   July, 

1890 61 

Abbott,  Mr.  Austin.     On  the  work  of  Mr.  Field.  .      79 
Codes  of  Civil  and  Criminal  Procedure  completed 

in  1850 11 

Dillon,  Hon.  John  F.     Paper  on  the  True  Profes 
sional   Ideal,  illustrating  in  the  career  of   Mr. 

Field  several  phases  of  that  character 64 

Field,  David  Dudley— 

His  remarkable  career 7 

Admitted  to  the  bar  as  attorney  in  1828  and 

as  counsellor  in  1830 9 

His  personality 41 

His  unobtrusive  generosity 57 

Poem  by  him  at  eighty-seven 47 

Last  tribute.     Funeral  services  at  Calvary  Church, 

April  15,  1894 48 

Letter  of  Mr.  John  E.  Parsons,  on  Mr.  Field's  love 

of  children 55 

Letter  of  Rev.  Dr.  Henry  van  Dyke,  the  compan 
ion  of  Mr.  Field  on  his  last  voyage 56 

Letter  of  Hon.  John  Randolph   Tucker,  on   Mr. 
Field's  movement  for  international  arbitrament.      61 


Page. 

Minute  of  a  meeting  of  the  Faculty  of  Washington 
and  Lee  University,  held  May  14,  1894,  on  the 

death  of  Mr.  Field 62 

Political  career  of  Mr.  Field 34 

Proceedings  on  the  death  of  Mr.  Field,  May  3, 1894, 
by  the  Association  for  the  Reform  and  Codifica 
tion  of  the  Law  of  Nations 59 

Resolution  on  the  death  of  Mr.  Field,  May  3, 1894, 
by  the  International  Arbitration  and  Peace  As 
sociation 60 

The  New  York  World  on  the  death  of  Mr.  Field. .      18 
The  New  York  Evangelist  on  the  life  and  character 

of  Mr.  Field 41 

The  writer  of  the  New  York  codes  of  law , 38 

Words  of  the  pouugest  brother  of  Mr.  Field  in  The 
Evangelist,  April  26,  1894 49 


EXTRACTS    FROM    NOTICES 


OF 


DAVID    DUDLEY    FIELD. 


[From  the  New  York  Times  of  April  14,  1894.] 


DAVID  DUDLEY  FIELD,  the  eminent  jurist,  died  at  his 
residence,  22  Gramercy  Park,  at  3.30  o'clock  yesterday 
morning,  April  13. 

Mr.  Field  was  ill  only  a  few  hours.  His  end  was 
painless  and  peaceful. 

He  returned  from  Europe  Tuesday,  April  11,  on  the 
steamship  Columbia.  He  went  abroad  to  visit  his  only 
surviving  child,  Lady  Musgrave,  widow  of  Sir  Anthony 
Musgrave,  who  at  the  time  of  his  death  was  Governor 
of  Queensland,  Australia.  Lady  Musgrave  lives  in 
Sussex  County,  England.  After  his  visit  to  her,  Mr. 
Field  went  to  Italy,  whence  he  came  home.  It  is  sup 
posed  that  he  caught  cold  while  crossing  the  ocean, 
but  there  were  no  signs  of  illness  when  he  landed. 
He  was  hale  and  hearty  and  looked  as  if  he  might  live 
many  years  longer. 

Thursday  afternoon  a  slight  cough  began  to  trouble 
him,  and  late  in  the  afternoon  his  family  deemed  it 
serious  enough  to  call  in  a  physician. 

Dr.  Stephen  Burt  was  summoned,  and  said  that  Mr. 


Field  had  a  congestive  chill  with  symptoms  of  pneu 
monia.  He  grew  worse  so  rapidly  that  Dr.  Francis 
Delafield,  an  authority  on  diseases  of  the  lungs  and 
throat,  was  called  in  to  consult  with  Dr.  Burt. 

At  6  o'clock  Dr.  Delafield  left  the  house.  Mr.  Field 
appeared  to  be  improving,  and  Dr.  Delafield  gave  it  as 
his  opinion  that  he  would  recover. 

Although  Dr.  Burt  remained  with  Mr.  Field  there 
seemed  to  be  nothing  to  do  to  add  to  his  comfort.  The 
progress  of  the  disease  was  apparently  checked.  The 
patient  rested  quietly,  and  slept  most  of  the  time. 

But  at  3  o'clock  in  the  morning  it  was  seen  that  a 
change  was  coming  over  Mr.  Field,  and  the  household 
was  aroused  and  gathered  in  his  room. 

Besides  Dr.  Burt  there  were  present  his  daughter-in- 
law,  Mrs.  Dudley  Field,  Jr.;  his  niece,  Miss  Clara  Field, 
and  several  of  the  family  servants. 

Restoratives  were  applied  in  vain,  and  at  3.30  o'clock 
Mr.  Field  passed  quietly  away. 

When  Mr.  Field  arrived  from  Europe,  the  Eev.  Henry 
M.  Field  sent  this  telegram  to  Justice  Field  at  Wash 
ington  : 

"  Dudley  arrived  this  morning  in  splendid  condition." 

In  answer  he  received  a  letter  from  Justice  Field  in 
viting  the  two  brothers  to  Washington  for  a  visit. 
The  reply  to  this  letter  was  this  dispatch  sent  yester- 


"  Our  brother  passed  away  early  this  morning." 

Justice  Field  arrived  from  Washington  last  night. 
The  funeral  will  be  held  Sunday  afternoon  at  Calvary 


Church,  Fourth  avenue  and  Twentieth  street.  The 
body  will  be  taken  to  Stockbridge,  Mass.,  for  burial. 
Mr.  Field's  father  and  mother  were  buried  there. 

The  pall-bearers  are  :  Chief  Justice  Fuller  of  the 
United  States  Supreme  Court,  John  Bigelow,  Joseph 
PI.  Choate,  William  M.  Evarts,  Abram  S.  Hewitt,  ex- 
Judge  Charles  A.  Peabody,  Chancellor  MacCracken, 
Eobert  E.  Deyo,  Kobert  M.  Gallaway,  Charles  Butler, 
Judge  Charles  Andrews,  Judge  A.  E.  Lawrence,  and 
H.  H.  Anderson. 

When  the  news  of  Mr.  Field's  death  became  known 
throughout  the  city,  expressions  of  regret  were  heard 
on  every  hand.  Mayor  Gilroy  ordered  the  flags  on  the 
City  Hall  displayed  at  half-mast,  and  the  flag  over  the 
Lawyers'  Club,  in  the  Equitable  Building,  was  also  at 
half-mast. 

Judge  Pryor,  sitting  in  Part  I.  of  the  Court  of  Com 
mon  Pleas  ;  Judge  Bookstaver,  holding  a  Special  Term 
of  the  Court  of  Common  Pleas,  and  Judge  Giegerich, 
in  Part  III.  of  the  Court  of  Common  Pleas,  adjourned 
court  when  they  heard  of  Mr.  Field's  death. 

The  journals  of  the  day  were  filled  with  notices  of 
Mr.  Field's  life  and  career.  Some  of  them  are  here 
reprinted  at  the  suggestion  of  friends. 


ME.  FIELD'S  EEMAEKABLE  CAEEEE. 


ONE    OF    FOUR    BROTHERS,    EACH    OF    WHOM    ATTAINED    DIS 
TINCTION. 

When  four  such  brothers  as  David  Dudley,  Stephen 
J.,  Cyrus  W.,  and  Henry  M.  Field  are  born  into  one 


8 

family,  unusual  interest  attaches  to  the  stock  from 
which  they  sprang.  In  a  republic  which  recognizes 
the  aristocracy  of  achievement  as  ranking  the  preten 
sions  of  wealth  and  family,  lineage  is  certainly  not 
overvalued,  at  least  in  the  case  of  men.  But  in  the 
case  of  the  Field  brothers  there  is  conspicuous  rein 
forcement  and  illustration  of  what  Dr.  Holmes  has 
termed  the  dynamic  force  of  New  England's  Brahmin 
blood. 

The  Kev.  Dr.  David  Dudley  Field,  the  father  of  the 
famous  brothers,  was  the  son  of  Captain  Timothy  Field 
of  Guilford,  Conn.,  a  soldier  in  the  war  of  the  Kevolu- 
tion.  He  settled  at  Haddam,  Conn.,  after  being  edu 
cated  at  Yale  College,  where  he  was  the  room-mate  of 
Jeremiah  Evarts,  father  of  William  M.  Evarts.  He 
received  his  doctorate  from  Williams  College.  Both 
father  and  mother  lived  until  their  first  child,  David, 
who  was  born  February  13,  1805,  was  well  past  fifty 
years  of  age.  In  their  declining  years  they  reaped  an 
ample  reward  of  comfort  and  pride  for  their  early 
labors.  Coming  from  this  clerical  and  military  stock, 
there  should  be  no  surprise  at  the  brains  and  spirit 
which  ranked  David  Dudley  Field  among  the  first  law 
yers  of  his  time. 

In  1819  his  father  removed  from  Haddam,  Conn., 
and  became  pastor  of  the  church  in  Stockbridge,  Mass., 
where  his  eldest  son  was  educated  at  the  academy 
along  with  Mark  Hopkins,  afterwards  President  of 
Williams  College,  and  his  brother  Albert,  professor  of 
astronomy,  all  of  whom  entered  the  college,  and  their 
personal  relations  remained  through  life  of  the  most 
affectionate  character.  Leaving  college  in  1825,  he 
began  the  study  of  law  in  the  office  of  Harm  anus 


9 

Bleecker,  at  Albany.  After  a  few  months  he  aspired  to 
a  wider  sphere,  and  came  to  New  York.  He  travelled 
by  river,  as  there  were  then  no  railroads.  He  boarded 
at  80  Canal  street,  having  for  his  companions  William 
Cullen  Bryant  and  his  wife.  His  new  law  teachers 
were  Henry  and  Kobert  Sedgwick,  who  hailed  from 
Stockbridge.  In  1828  he  was  admitted  to  the  bar  as 
an  attorney,  as  was  then  the  custom,  and  in  1830  as 
counsellor.  He  was  almost  immediately  admitted  to 
partnership  with  the  Sedgwicks,  and  was  at  once  in  the 
full  tide  of  a  practice  which  scarcely  slackened  for  half 
a  century.  Within  a  half  dozen  years  he  had  conceived 
in  all  its  scope  and  symmetry  the  idea  upon  which  his 
fame  will  rest.  If  his  career  is  nearly  unique  for  its 
mere  length,  it  is  no  less  remarkable  that  his  first  work 
was  also  both  the  ripest  and  soundest  he  ever  did,  and 
was  left  incomplete — probably  never  to  be  completed — 
by  his  death. 

It  is  no  proper  part  or  province  of  an  obituary  rec 
ord  to  discuss  the  merits  of  codification  of  the  common 
law.  That  is  a  boundless  field,  full  of  controversy,  and 
with  weighty  authority  on  both  sides.  Moreover,  it  is 
scarcely  a  popular  subject,  being  fitter  for  professional 
journals.  But  no  account  of  Mr.  Field's  life  would  be 
complete  without  an  attempt  to  indicate  to  unprofes 
sional  readers  the  scope  of  his  labors  as  a  codifier  and 
reformer  of  the  common  law.  Caligula  published  his 
laws  by  inscribing  them  in  small  1  tters  at  the  top  of  a 
high  pillar.  But  whoever  broke  the  law  was  never 
excused  because  he  could  not  read  it.  The  common  law 
so  far  improved  upon  this  precedent  that  it  was  wholly 
"  unwritten."  The  only  way  authoritatively  to  discover 
it  was  to  take  the  opinion  of  a  judge  upon  an  actual 


10 

case.  "  Do  you  know  how  judges  make  the  common 
law  ?  "  indignantly  asked  Jeremy  Bentham,  and  answered 
himself :  "  Just  as  a  man  makes  laws  for  his  dog.  When 
your  dog  does  anything  you  want  to  break  him  of,  you 
wait  till  he  does  it  and  then  beat  him  for  it.  And  this 
is  the  way  the  judges  make  law  for  you  and  me." 

In  the  course  of  centuries  unnumbered  thousands  of 
such  decisions,  taken  together,  composed  the  body  of 
the  common  law.  In  one  volume  of  New  York  Re 
ports  5,037  cases  were  cited  by  counsel  in  arguing  one 
hundred  and  twenty-three  cases  in  a  period  of  only  two 
months.  None  of  those  lawyers  could  know  the  law 
until  the  judge  had  spoken,  and  as  for  clients,  they  ex 
perienced  the  working  of  Jeremy  Bentham's  remark, 
even  though  they  never  heard  of  it.  The  task  with 
which  David  Dudley  Field  associated  himself  was  to  go 
through  thousands  of  volumes  containing 

That  codeless  myriad  of  precedents, 
That  wilderness  of  single  instances, 

and  reduce  them  to  form  and  order.  By  extracting 
principles,  by  rejecting  superfluous  cases,  by  reconcil 
ing,  condensing,  and  rejecting,  Mr.  Field  contended 
that  the  law  could  be  compressed  into  a  single  book, 
where  any  man  could  go  for  himself  and  read  his  rights 
and  duties  according  to  the  natural  measure  of  his  in 
telligence.  The  most  acute  and  industrious  master  of 
literature,  Macaulay,  after  personal  experience  as  mem 
ber  of  the  Supreme  Council  of  India,  declared  codify 
ing  the  law  to  be  "  among  the  most  difficult  tasks  upon 
which  the  human  mind  can  be  employed."  Mr.  Field's 
opponents  went  beyond  this.  They  contended  that  the 
task  was  impossible,  and  that  if  it  were  done,  it  would 


11 

be  harmful  by  introducing  inflexible  monarchical 
methods  into  a  community  which  preferred  to  make  its 
law  from  day  to  day,  as  cases  arose. 

Seldom,  if  ever,  was  there  such  a  legal  battle.  Mr. 
Field's  first  formal  proposal  was  outlined  in  a  letter  to 
Senator  G.  C.  Verplanck  in  1839.  From  that  day  for 
half  a  century  he  was  ready  to  fight  in  its  behalf  at  any 
provocation,  and  he  was  kept  busy  most  of  the  time. 
The  bar  almost  as  one  man  protested  that  he  was  an 
impracticable  visionary.  The  Bar  Association  formally 
resolved  against  him,  and  retracted  the  resolution  after 
argument  in  its  own  halls.  But  it  sent  committee  after 
committee  to  appear  against  him  before  the  Legislature's 
committees,  and  the  field  was  threshed  over  almost 
yearly.  Sometimes  the  bill  would  pass  one  house, 
sometimes  the  other,  and  twice  it  passed  both,  only  to 
be  vetoed  and  recur  again  in  later  years. 

His  elaborate  "  Codes  of  Civil  and  Criminal  Pro 
cedure  "  were  completed  in  1850,  and  were  later  adopted 
by  the  State  Legislature.  In  1857  Mr.  Field  was  ap 
pointed  head  of  a  commission  to  prepare  a  political 
and  civil  code  for  the  State  of  New  York.  They  were 
completed  in  1865.  The  State  only  adopted  the  Penal 
Code. 

Now  Mr.  Field  has  gone,  leaving  the  substantive 
common  law  of  New  York  codified,  indeed,  but  not  en 
acted.  But  the  criminal  law  has  been  both  codified 
and  enacted,  and  so  has  the  law  of  both  civil  and  crimi 
nal  procedure.  If  this  were  all,  it  would  be  very  much  ; 
but  while  his  own  State  was  hard-hearted  toward  the 
codifier  and  reformer,  other  States  and  nations  wel 
comed  his  work  with  flattering  enthusiasm.  His  entire 
work  has  been  adopted  in  two  States ;  the  Code  of 


12 

Civil  Procedure  has  been  adopted  to  some  degree  in  a 
majority  of  the  States,  while  seventeen  States  have 
enacted  the  Criminal  Code. 

Nor  is  this  all.  His  labors  have  been  effective  liter- 
erally  around  the  world.  In  India  and  Japan  and  in 
many  British  colonies  the  scheme  of  law  which  New 
York  rejected  at  the  hands  of  its  own  citizen  was  adopted 
by  them  from  the  hands  of  an  alien,  and  the  principles 
he  first  formulated  to  remedy  century-old  abuses  now 
enter  into  the  legal  system  of  every  English-speaking 
people. 

It  was  in  1866  that  he  brought  before  the  British  As 
sociation  for  the  Promotion  of  Social  Science  a  propo 
sal  for  a  general  revision  and  reform  of  the  law  of  all 
nations  similar  to  that  which  he  had  before  undertaken 

of  the  civil  and  criminal  law.     A  committee  of  eminent 

• 

jurists  of  different  countries  was  appointed  to  draw  up  an 
international  code,  which  it  was  hoped  would  receive  the 
approval  of,  and  be  adopted  by,  the  Governments  rep 
resented  as  the  recognized  law  of  nations.  The  mem 
bers  of  the  committee  found  it  impossible  to  agree,  and 
Mr.  Field  took  upon  his  own  shoulders  the  whole  work. 
His  "  Outlines  of  an  International  Code,"  the  result  of 
seven  years'  hard  work,  attracted  the  attention  of  the 
whole  world,  and  was  translated  into  French  and  Italian. 
An  international  association  was  formed,  including  in 
its  membership  jurists,  economists,  legislators,  and  pol 
iticians,  the  object  of  which  was  the  reform  and  codi 
fication  of  the  law  of  nations  and  the  substitution  of 
arbitration  for  war  in  the  settlement  of  disputes  be 
tween  nations. 

It  is  not  intended  in  the  least  to  ignore  or  belittle  the 
labors  of  Mr.  Field's  coadjutors,  Messrs.  Loomis,  Gra- 


13 

ham,  A.  W.  Bradford,  Noyes,  and  others.  They  were 
good  assistants,  it  is  true,  but  no  one  of  them  wishes 
to  rank  with  him  in  this  matter.  Mr.  Field's  similar 
scheme  for  the  codification  of  the  law  of  nations  made 
good  progress  and  rests  in  able  hands,  being  the  special 
charge  of  an  international  organization  of  lawyers,  of 
which  he  was  president.  How  far  it  will  proceed  re 
mains  to  be  seen.  Mr.  Field  was  the  incarnation  of 
the  idea  that  "  the  way  to  codify  is  to  codify."  If  his 
survivors  are  likeminded,  something  may  be  done  in  an 
urgent  field .  But  even  though  he  left  his  tasks  unfinished 
he  did  enough  to  rank  him  among  the  foremost  philo 
sophical  lawyers,  not  of  his  State  and  nation  merely, 
but  of  his  generation. 

In  1884  Messrs.  Appleton  published  two  volumes  of 
his  miscellaneous  addresses  and  arguments  which  gave 
an  excellent  idea  of  the  quality  of  his  genius  and  the 
range  of  his  work.*  Prominent  among  them  were  his 
argument  against  military  tribunals  for  civilians,  in 
which  the  friend,  admirer,  and  counselor  of  Lincoln 
and  Stanton  checked,  nevertheless,  their  assumption  of 
power  over  human  life.  In  the  Cummings  case  he  made 
test  oaths  odious  ;  in  the  McArdle  case,  although  in 
advance  of  popular  sentiment  during  the  trying  period 
of  reconstruction,  he  paved  the  way  for  abolishing  mili 
tary  government  of  the  State  by  establishing  its  uncon 
stitutionally.  The  Cruikshank  case  in  1875,  argued 
when  he  was  past  the  Biblical  limit  of  age,  would  have 
done  credit  to  a  constitutional  lawyer  in  his  prime  for 
its  exposition  of  the  true  constitutional  theory  of  State 
rights. 

*  A  third  volume  has  since  been  published,  and  a  fourth  will  be 
added  by  his  surviving  brothers,  who  are  his  literary  executors. 


14: 

Mr.  Field's  political  career  calls  for  scant  remark. 
He  was  first  a  lawyer,  and  only  accidentally  an  aspirant 
for  public  office  in  order  to  serve  his  leading  aim.  Tims 
he  sought  to  enter  the  new  York  Legislature  in  1837  to 
advance  his  codification  schemes,  but  he  was  defeated 
through  the  opposition  of  Bishop  Hughes  on  the  edu 
cational  issue  which  still  vexes  politicians.  In  1877  he 
sat  in  Congress  for  about  two  months,  being  elected  to 
fill  Smith  Ely's  unexpired  term.  He  was  a  Democrat 
of  the  very  rare  anti-slavery  type.  In  the  former  ca 
pacity  he  helped  nominate  Van  Buren  upon  a  platform 
of  no  more  territory  for  the  ownership  of  human  flesh 
and  blood.  Even  as  early  as  1847  he  cast  into  the 
Syracuse  Convention  his  "  fire-brand-of-freedom  "  res 
olution,  which  was  adopted  as  the  cry  of  the  Free  Soil 
Party,  and  was  long  kept  standing  in  the  Barnburner 
newspapers.  He  is  credited — or  debited — with  devis 
ing  the  scheme  of  the  Electoral  Commission,  which,  if 
it  saved  the  country  bloodshed,  did  so  at  the  cost  of  the 
Democratic  party  and  to  the  nation  of  the  loss  of  the 
services  as  President  of  S.  J.  Tilden.  Whatever  view 
be  taken  of  this  episode  politically,  the  legal  portion 
of  it  well  sustains  Mr.  Field's  repute  for  the  successful 
novelty  of  his  ideas. 

Mr.  Tilden  had  8,000  majority  of  the  popular  vote 
in  Louisiana.  The  Kepublicans,  however,  claimed  the 
electoral  vote.  The  decision  of  the  question  which 
then  arose  was  complicated  by  the  fact  that  the  United 
States  Senate  was  Republican  and  the  House  of  Rep 
resentatives  Democratic.  A  law  was  then  enacted,  at 
Mr.  Field's  suggestion,  creating  an  "  Electoral  Commis 
sion  "  of  fifteen  members — five  Judges  of  the  Supreme 
Court,  five  members  of  the  Senate,  and  five  members  of 


15 

the  House — to  decide  the  case.  Mr.  Field  was  one  of 
the  counsel  for  the  Democratic  party  before  the  Com 
mission.  Mr.  Hayes  was  declared  elected  by  a  majority 
of  one  vote  of  the  Commission.  Mr.  Field  always  pro 
tested  that  Mr.  Tilden  was  wrongfully  kept  out  of  the 
White  House. 

Although  a  Democrat,  he  was  so  far  from  being  a 
Copperhead  that  so  good  a  judge  as  Henry  J.  Raymond 
allotted  to  him  a  share  in  the  nomination  of  Abraham 
Lincoln  by  helping  to  defeat  Seward  in  the  convention 
of  1860.  After  Lincoln's  election  he  strove  to  avert 
war  by  heading  New  York's  delegation  to  the  Peace 
Congress  at  Washington,  but  after  Sumter  was  fired 
on,  he  was  as  ready  to  fight  it  out  on  that  line  as  even 
the  great  General  himself. 

Mr.  Field  was  over  six  feet  in  height,  not  stout,  and 
yet  he  weighed  200  pounds.  In  some  moods  there  was 
a  suggestion  of  the  martial  sternness  which  character 
izes  some  of  the  pictures  of  the  burly  Bismarck.  His 
personal  manner  was  agreeable  ;  but  his  professional 
manner  was  rather  easy  and  cool  than  elegant.  He 
lacked  the  charm  of  Depew,  or  the  eloquence  of  Choate  ; 
but  there  was  no  lack  of  conviction,  or  of  convincing 
quality,  in  the  cold  but  robust  manner  in  which  diffi 
culties  were  not  evaded  or  slurred,  but  fairly  conquered 
by  great  learning  and  pitiless  logic.  He  was  a  maker 
of  precedents  rather  than  a  respecter  of  them,  and  liked 
nothing  better  than  to  triumph  by  establishing  sound 
principle  against  apparent  authority.  It  would  be  easy 
to  recall  instances  both  of  something  like  truculence 
against  arbitrary  power  and  of  very  contrary  and  much 
more  amiable  traits.  Thus,  when  Chief  Justice  Noah 
Davis  fined  such  lawyers  as  Graham,  Fullerton,  and 


16 

Bartlett — who  will  scarcely  be  recognized  as  weaklings 
— they  submitted.  But  when  Mr.  Field  returned  from 
the  absence  which  saved  him  from  being  their  associate 
in  judicial  censure,  instead  of  doing  nothing — as  he 
very  well  might — he  published  a  contemptuously- 
phrased  avowal  of  equal  fault,  and  challenged  the  in 
fliction  of  a  like  penalty,  by  which  the  right  and  justice 
of  the  punishment  might  be  tried  before  the  highest 
tribunal.  On  the  other  hand,  hearing  that  T.  G.  Shear 
man,  without  personal  acquaintance,  but  upon  obser 
vation  of  the  facts,  had  defended  him  in  a  company 
where  his  fidelity  to  slippery  clients  was  made  a  re 
proach  to  his  own  character,  Mr.  Field  sent  for  Mr. 
Shearman,  and  proffered  him  the  rich  reward  of  a  part 
nership. 

Although  so  hard  a  worker  and  fighter,  and  although 
of  so  large  frame,  Mr.  Field  was  not  in  vigorous  health 
in  early  life.  Like  many  others,  he  almost  lost  his 
health  before  he  learned  to  preserve  it.  As  a  young 
man,  he  was  not  athletic,  although  with  some  fondness 
for  water  sports,  and  in  early  manhood  he  saw  signs  of 
breaking  vigor  in  severe  headaches.  The  worthlessness 
of  gymnasium  work  and  machine  exercise  was  soon  ap 
parent,  and  thereafter  he  was  accustomed  to  walk  to 
and  from  his  residence  in  Gramercy  Park,  and  after 
wards  from  Park  Avenue,  a  mile  further  up  town,  to 
his  office  in  lower  Broadway,  a  distance  of  six  or  seven 
miles,  daily.  He  also  rode  horseback  a  great  deal,  and 
was  temperate  in  eating,  using  a  little  wine  and  no 
tobacco.  Mr.  Field  was  thrice  widowed,  his  first  wife 
dying  as  early  as  1836.  His  son  and  partner  died  in 
1880,  inflicting  a  severe  blow  to  a  fond  and  appreciative 
father.  His  daughter  married  Sir  Anthony  Musgrave, 


17 

then  Governor  of  British  Columbia,  who  died  a  few 
years  since  while  Governor  of  Queensland.  She  is  now 
living  in  Sussex  County,  England.  Mr.  Field  was  a 
great  traveler.  His  European  journeys  were  frequent, 
giving  him  an  acquaintance  abroad  equal  to  that  at 
home.  Once  he  journeyed  around  the  world,  and  it  is 
well  within  the  mark  to  say  that  his  foreign  acquaint 
ance  and  repute  were  second  to  those  of  no  other 
American  lawyer. 


HOUSE  AND  SENATE  ADJOUBN. 


ALBANY,  April  13. — Both  House  and  Senate  adjourned 
this  morning  out  of  respect  to  the  memory  of  David 
Dudley  Field.  In  the  House,  Mr.  Sulzer  made  the  an 
nouncement  of  Mr.  Field's  death,  and  moved  that  the 
House  adjourn,  and  that  the  Speaker  appoint  a  com 
mittee  of  nine  to  take  suitable  action  to  show  the  regard 
in  which  it  held  Mr.  Field.  Adjournment  was  ordered 
until  8.30  o'clock  Monday  night,  and  the  chair  appointed 
as  the  Memorial  Committee,  Messrs.  Fish,  Sulzer,  Bush, 
Howe,  Friday,  Kneeland,  Foley,  Thornton,  and  Dow- 
ling. 

The  announcement  to  the  Senate  of  Mr.  Field's  death 
was  made  by  Mr.  Coggeshall,  who  said  he  voiced  the 
universal  feeling  of  the  people  when  he  said  that  the 
news  of  the  death  of  this  great  man  wakened  a  feeling 
of  profound  regret.  Mr.  Field  was  a  ripe  scholar  and 
a  distinguished  lawyer,  who  died  crowned  with  honor. 
His  life  was  a  lesson  and  an  inspiration. 

Senator  Saxton  made  a  brief  speech  of  eulogy,  refer- 


18 

ring  to  Mr.  Field's  services  in  codifying  and  simplifying 
the  rules  of  legal  procedure,  and  saying  that  up  to  the 
day  of  his  death  he  took  an  interest  in  good  legislation. 


[From  The  World  of  New  York  of  April  14,  1894.] 

At  3.30  A.  M.  yesterday,  while  the  last  fitful  gusts  and 
mutterings  of  the  storm  that  killed  him  were  still  sound 
ing  around  the  house,  DAVID  DUDLEY  FIELD,  in  his 
ninetieth  year,  died  as  calmly  and  peacefully  as  a  little 
child  falls  asleep.  He  had  come  back  to  his  native 
country  only  two  days  before,  a  hale,  hearty,  vigorous 
old  gentleman,  to  whom  death  was  only  a  remote  pos 
sibility.  But  the  American  shore  that  he  greeted  with 
so  much  joy  and  love  gave  him  an  icy  welcome,  and 
almost  his  first  breath  of  his  native  air  brought  death. 
He  died  of  pneumonia,  brought  on  by  the  great  storm, 
in  the  height  of  which  he  arrived  from  the  glowing 
warmth  of  the  Mediterranean  Sea. 

Now  that  he,  the  oldest,  has  followed  his  famous 
brother,  Cyrus  West  Field,  only  two  of  the  four  great 
brothers  who  made  the  name  of  Field  a  noble  and  cher 
ished  one  are  left — Stephen  Johnson  Field,  now  seventy- 
seven  years  old,  who  has  been  on  the  bench  of  the  Su 
preme  Court  of  the  United  States  for  over  thirty-one 
years,  and  the  Kev.  Dr.  Henry  Martyn  Field,  now  sev 
enty-two  years  old. 

It  was  this  gentle-faced,  kindly,  white-haired  old 
preacher,  who,  sitting  sadly  yesterday  in  the  quiet  parlor 
of  the  big  house  at  No.  22  Gramercy  Park,  with  David 
Dudley  Field's  silent  form  lying  in  the  room  above  him, 
told,  with  an  exceeding  great  love  and  tenderness,  of  the 


19 

last  hours  of  the  brother  of  whom  he  had  been  so  proud. 
He  began  with  an  account  of  the  tour  abroad,  from 
which  David  Dudley  had  returned  on  Wednesday  morn 
ing,  and,  after  telling  how  he  had  missed  meeting  his 
brother  on  the  Hamburg  line  pier,  he  said : 

"  So  I  drove  back  to  the  house  here  as  fast  as  I  could 
go.  And  when  I  got  in,  why,  there  he  was  ahead  of 
me,  the  fine,  big,  dear  fellow."  The  old  preacher  re 
moved  his  spectacles  and  wiped  them  furtively.  He 
had  to  do  it  many  times.  "  I  heard  his  ringing,  cheery 
voice  shouting,  '  How  are  you,  brother  Henry  ?'  and  I 
found  him  warming  his  hands  before  the  big  fire,  and 
looking  wonderfully  tall  and  strong.  I  never  saw  the 
dear  old  man's  face  shine  as  it  did  then.  He  was  full 
of  life,  and  the  improvement  in  his  appearance  over 
what  it  was  when  he  went  away  was  delightful  to  see. 
We  went  upstairs,  and  spent  an  hour  or  two  conversing, 
and  it  was  amazing  to  find  how  much  he  was  interested 
in  everything  that  had  happened  since  he  went  away. 
He  spoke,  too,  of  foreign  affairs  and  of  the  friends  and 
others  whom  he  had  met  abroad,  with  all  the  vigor  of 
a  young  man.  That  indomitable  energy  had  always 
been  a  feature  of  his.  He  was  fond  of  early  rising, 
like  our  whole  family,  and  until  a  few  years  ago  there 
was  no  more  familiar  figure  on  the  avenue  than  my 
brother  Dudley.  He  preserved  his  intellectual  activity 
to  the  end. 

"After  we  had  talked  for  a  long  time,  I  left  him,  but 
came  again  in  the  afternoon,  when  he  was  still  feeling 
well.  But  about  3  o'clock  in  the  morning  he  awoke  in 
a  chill  and,  ringing  the  electric  bell,  called  his  valet, 
Watson,  who  had  been  with  him  for  years,  and  is  so 
well  trained  and  experienced  that  he  is  competent  to 
act  as  nurse  and  almost  as  doctor,  and  he  did  every 
thing  for  my  brother  until  the  doctor  came." 

Dr.  Stephen  S.  Burt,  of  No.  37  West  Thirty-second 
street,  the  physician  of  the  Field  family,  then  told  how 


20 

he  had  come  early  Thursday  morning  and  found  Mr. 
Field  suffering  from  a  bad  chill,  together  with  a  fever, 
and  showing  all  signs  of  a  rapid  collapse.  His  old 
heart  trouble,  from  which  Dr.  Burt  said  Mr.  Field  has 
probably  not  been  entirely  free  any  time  during  the 
last  twenty  or  twenty-five  years,  naturally  asserted  itself, 
and  the  patient  grew  worse  hour  after  hour.  The  valet 
told  the  doctor  that  there  had  been  some  delay  at  the 
pier  after  the  ship  reached  it,  and  that  Mr.  Field  went 
suddenly  from  a  very  hot  place  into  the  cold  air  on  the 
dock.  This,  with  the  excitement  consequent  on  getting 
home,  made  him,  as  Dr.  Burt  expressed  it,  go  all  to 
pieces.  Before  noon  Thursday  his  condition  was  so 
low  that  his  death  was  looked  for  hourly ;  but  under 
the  action  of  powerful  stimulants  he  rallied  and  seemed 
to  recover.  At  7  p.  M.  Dr.  Burt  returned  to  the  house 
with  Dr.  Francis  Delafield,  of  No.  12  West  Thirty- 
second  street,  an  expert  on  heart  and  lung  troubles. 

They  found  Mr.  Field's  condition  improved.  He 
seemed  to  breathe  more  freely.  But  by  10  p.  M.  his 
breath  came  in  fits  and  starts,  and  a  warning  rattle 
came  into  his  throat.  He  was  apparently  unconscious, 
save  at  intervals,  during  which  he  recognized  his  daugh 
ter-in-law,  Mrs.  Dudley  Field.  Meanwhile  he  suffered 
no  pain.  At  3.  A.  M.  yesterday  the  nurse  called  the 
doctor,  and  he  saw  at  once  that  the  great  lawyer  was 
going  before  the  greatest  Judge.  Without  a  tremor, 
without  a  motion  or  a  sigh,  he  passed  away,  and  within 
half  an  hour  all  was  over. 

The  Rev.  Dr.  Field  had  gone  home  when  he  heard 
that  the  patient's  condition  was  improved,  and  he  did 
not  know  that  his  brother  was  dead  till  he  came  to  the 
house  yesterday  morning.  What  the  news  meant  to 


21 

him  can  be  known  only  by  those  who  know  how  the 
brothers  loved  each  other.  Dr.  Field  had  in  his  pocket 
a  letter  from  the  other  brother,  Justice  Field,  written 
in  Washington  Thursday,  in  which  he  acknowledged 
the  former's  telegram  announcing  that  "  Dudley  arrived 
this  morning  in  splendid  condition,"  and  asked  most 
affectionately  that  Dudley  visit  him  in  Washington. 
The  writer  of  this  happy  letter  received  the  answer  by 
wire  :  "  Our  brother  passed  away  early  this  morning." 

Messages  were  also  sent  to  Lady  Musgrave,  Mr. 
Field's  daughter,  and  to  all  friends  abroad  and  in  this 
country.  Before  noon  many  callers  came  to  the  house, 
Joseph  H.  Choate  being  among  the  first,  and  there  was 
a  steady  procession  of  carriages  all  day  long. 

SIGNS    OF    PUBLIC   KEGRET. 

The  flags  on  the  Federal,  State,  and  municipal  build 
ings  were  half-masted.  Both  branches  of  the  Legis 
lature  in  Albany  were  adjourned.  The  courts  of  rec 
ord  here  made  minutes  in  Mr.  Field's  honor,  and 
Judge  Pry  or,  in  adjourning  Common  Pleas,  said  : 

"  It  is  eminently  proper  that  this  court  and  every 
court — not  only  of  the  State  of  New  York,  but  in  the 
United  States — should  concurrently,  by  every  species 
of  eulogistic  homage,  testify  their  respect  to  the  char 
acter  and  services  of  this  very  eminent  American  citi 
zen.  But  not  only  was  Mr.  Field  in  his  day,  while  not 
actively  practising,  facile  princeps  at  the  head  of  the 
bar,  in  learning  and  ability  beyond  the  province  and 
compass  of  any  other  lawyer  in  America,  but  he  has 
contributed  to  promote  law  reform  by  imparting  to  our 
profession  the  accuracy  and  symmetry  of  a  progressive 
science.  Undoubtedly  to-day,  in  all  countries  of  the 


22 

globe,  Europe,  Asia,  or  Africa,  where  there  is  one  jot  of 
civilization,  if  a  subject  or  resident  should  be  asked 
who  is  the  greatest  American  lawyer,  without  hesitation 
he  would  say,  '  David  Dudley  Field.'  And  I  therefore 
direct  the  minute  to  be  made  upon  record  ;  and,  in  view 
of  the  high  esteem  in  which  this  court  holds  the  mem 
ory  of  David  Dudley  Field  and  its  inexpressible  sorrow 
at  his  untimely  death,  instead  of  being  content  with 
this  small  tribute,  I  shall  direct  the  court  to  be  ad 
journed." 

A   GEAVEYAKD    MADE    FAMOUS. 

Mr.  Field  will  be  buried  in  the  home  of  his  parents, 
Stockbridge,  Mass.,  in  the  village  churchyard.  There 
where  the  chimes  ring  out  every  evening  from  the 
square  tower  erected  by  Mr.  Field  to  mark  the  site  of 
the  first  church,  lie  his  father,  the  Eev.  Dr.  David  Dud 
ley  Field,  the  country  parson  who  was  the  father  of 
the  four  great-hearted  brothers ;  his  wife,  whose  father, 
Captain  Noah  Dickinson,  fought  under  gruff  old  Gen 
eral  Putnam,  and  Cyrus  West  Field,  who  laid  the  first 
Atlantic  cable. 

There  will  be  no  services  other  than  the  Episcopal 
committal  service  at  the  grave,  as  the  formal  funeral 
ceremonies  will  be  held  here  at  4.30  p.  M.  to-morrow  in 
Calvary  Church,  at  Fourth  avenue  and  Twenty -first 
street. 

David  Dudley  Field  was  very  proud  of  his  daughter, 
Lady  Musgrave,  and  her  three  boys,  whom  he  always 
called  his  trinity.  He  never  tired  of  telling  what  sons 
of  Anak  they  were.  His  pride  in  them  was  justifiable, 
for  Dudley  Field,  the  eldest,  though  only  twenty-one 
years  old,  is  now  a  midshipman  in  the  British  navy,  at 
present  being  at  Bombay.  Arthur  David,  nineteen 


23 

years  old,  is  captain  of  a  British  battery  at  Shoebury- 
ness,  and  the  youngest,  Herbert,  though  only  seventeen 
years  old,  has  just  passed  his  examination  at  Woolwich 
for  the  army,  standing  second  among  400  applicants. 
It  is  probable  that  they  will  receive  the  bulk,  if  not  all, 
of  Mr.  Field's  estate. 

The  marriage  of  his  daughter  to  Sir  Anthony  Mus- 
grave  was  a  most  happy  one.  He  was  Governor  of 
Newfoundland  at  the  time  of  the  laying  of  the  Atlantic 
Cable  in  1866,  and  then  became  acquainted  with  Cyrus 
W.  Field,  whom  he  afterwards  visited  in  New  York, 
where  he  first  met  Miss  Field.  He  died  about  three 
years  since,  while  Governor  of  Queensland.  It  was  to 
visit  this  daughter  and  to  attend  the  celebration  of  the 
twenty-first  birthday  of  the  midshipman  that  Mr.  Field 
went  to  Europe  on  November  8.  He  did  it  against  the 
advice  of  his  friends,  as  he  had  not  fully  recovered 
from  his  severe  illness  of  about  four  years  ago  until 
last  summer.  He  spent  Christmas  at  Lady  Musgrave's 
estate  in  East  Grinsted,  Sussex,  and  on  January  8 
started  for  Paris.  Cannes  was  the  next  point  visited, 
and  a  few  days  were  then  spent  in  Monte  Carlo. 

Mentone,  Genoa,  Naples,  and  Pompeii  were  also 
visited,  after  which  he  spent  a  few  weeks  in  Kome, 
where  he  was  surrounded  by  admirers  and  friends,  who 
were  all  delighted  with  the  youthfulness  of  the  old  gen 
tleman.  It  was  the  same  in  Florence.  He  sailed  from 
Genoa,  March  29,  on  the  Hamburg-American  line  steam 
ship  Columbia  and  arrived  here  Wednesday  morning. 
Daring  the  exceedingly  rough  voyage  he  and  one  other 
man  were  the  only  two  passengers  who  were  not  sea 
sick  or  otherwise  indisposed.  He  said  then  that  he 
expected  to  spend  the  summer  in  the  Berkshires,  and 


24: 

that  his  one  great  ambition  was  to  have  his  law  codes 
adopted  all  over  the  world. 

HE   STARTED    LIFE  WITH    A    BIBLE    AND    ONLY  TEN  DOLLARS. 

His  brother,  Dr.  Field,  said  yesterday : 

"  In  his  life  there  is  a  great  lesson.  When  he  left  home 
our  dear  father  took  him  into  his  stiKty  and  kneeled  by 
his  side  and  prayed  with  him.  Then  he  gave  him  $10 
and  a  Bible !  That  was  all  he  had  when  he  started  in 
life,  $10,  a  Bible,  and  his  father's  prayers !  When  he 
came  to  New  York  he  met  a  young  man  who  was  earn 
ing  $500  a  year,  and  he  has  often  told  me  that  then  to 
reach  that  point  was  his  highest  ambition.  He  was 
an  indomitable  worker.  He  would  work  whole  nights 
through  until  he  had  finished  the  task  he  had  set  for 
himself.  What  saved  him  was  that  the  minute  his 
work  was  done  he  could  lie  down,  like  Napoleon,  and 
fall  asleep  instantly,  and  sleep  soundly.  He  had  won 
derful  ambition,  and  his  monuments  are  the  great  vol 
umes  which  contain  the  results  of  his  earnest  work  to 
reform  the  law. 

"  He  loved  little  children  dearly.  Last  summer,  at 
Stockbridge,  he  used  to  drive  over  to  a  home  which  a 
friend  had  erected  to  give  children  the  fresh  air.  When 
he  came  they  would  run  to  him,  screaming  with  joy, 
and  would  climb  all  over  him,  hanging  round  his  neck 
and  hugging  him,  so  that  it  was  a  delight  to  see  him. 
Then  his  kind  face,  all  smiles,  was  good  to  look  upon." 

The  white-haired  preacher  paused,  and  wiped  his 
glasses  with  a  hand  that  trembled  just  a  little,  and  con 
cluded,  in  a  low,  uncertain  voice  :  "And  now — and  now 
we  shall  take  him  Monday  to  the  Berkshire  Hills,  that 
he  loved  so  well,  and  lay  him  to  sleep  in  that  beautiful 
valley." 


25 

Sixty-six  years  ago  David  Dudley  Field  was  ad 
mitted  to  the  bar,  and  for  half  a  century  he  stood  in 
the  front  rank  of  lawyers,  not  only  of  America,  but  the 
world  over.  For  the  course  of  thirty  years  his  fame  as 
a  law  reformer  has  been  coextensive  with  the  limits  of 
civilization. 

Of  the  quartet  of  distinguished  brothers,  David  Dud 
ley  Field  is  the  second  to  pass  away.  Of  the  other 
who  is  dead  a  distinguished  statesman  once  spoke  : 
"  Columbus  once  said,  '  Here  is  one  world,  let  there  be 
two  ; '  but  Cyrus  W.  Field  said,  '  Here  are  two  worlds, 
let  there  be  one  ; '  and  both  commands  were  obeyed." 

Of  the  brothers  who  survive,  Stephen  Johnson  Field 
is  one  of  the  Justices  of  the  Supreme  Court  of  the 
United  States,  and  Dr.  Henry  M.  Field  sits  in  the  edi 
torial  chair  of  a  great  and  influential  religious  journal. 
The  Evangelist. 

The  father  of  these  four  men,  into  whose  lives, 
stretching  into  widely  diverging  paths,  so  many  honors 
and  achievements  have  been  crowded,  was  a  New  Eng 
land  clergyman  and  a  son  of  a  captain  in  the  war  of  the 
Revolution.  Friendly  investigators  who  have  searched 
the  archives  of  the  English  Heraldry  Office  found  that 
the  American  Fields  are  sprung  from  a  Norman  knight 
who  helped  William  the  Conqueror  invade  England. 
But  the  Field  family  are  content  with  their  well-estab 
lished  descent  from  the  celebrated  English  astronomer 
John  Field,  who  was  the  first  to  introduce  the  Coperni- 
can  system  into  England. 

Zachariah  Field,  who  came  to  America  in  1632  and 
settled  in  Northampton,  Mass.,  was  a  grandson  of  the 
astronomer,  and  from  him  the  ancestral  chain  of  the 
Fields  is  unbroken  down  to  the  Rev.  David  Dudley 


26 

Field,  the  minister  of  a  Congregational  church  in  Had- 
dam,  Conn.,  from  1804  until  1818.  To  him  was  born, 
February  13,  1805,  a  son  to  whom  he  gave  his  own 
name,  whose  long  life  of  honor  has  just  closed,  ending 
the  great  career  of  probably  the  foremost  lawyer  of  the 
century. 

The  salary  of  the  Rev.  Mr.  Field  as  pastor  of  the 
church  was  only  $500  a  year,  but  notwithstanding  this 
he  determined  to  give  his  son  a  collegiate  education. 
He  himself  had  been  graduated  from  Yale,  where  he 
roomed  with  Jeremiah  Evarts,  the  father  of  "William 
M.  Evarts.  When  the  youth  was  nine  years  old  his 
father  began  to  teach  him  Latin,  Greek,  and  math 
ematics.  In  1819  the  family  removed  to  Stockbridge, 
Mass.,  and  there  he  was  sent  to  the  academy,  over 
which  a  famous  teacher,  Jared  Curtis,  presided. 

When  .he  was  sixteen,  Dudley,  as  he  was  always 
called  by  his  family  and  his  intimates,  entered  Wil 
liams  College,  upon  leaving  which,  four  years  later,  he 
went  to  Albany,  where  he  read  law  in  the  office  of  Har- 
manus  Bleecker,  remaining  there  only  three  or  four 
months,  when  he  removed  to  New  York  City  and  en 
tered  the  office  of  Henry  and  Robert  Sedgwick,  who 
came  from  Stockbridge.  The  Sedgwicks  were  lawyers 
of  ability,  with  a  large  practice,  and  they  took  an  in 
terest  in  the  advancement  of  the  young  student. 

In  1828,  when  he  was  twenty-three  years  old,  he  was 
admitted  as  an  attorney  and  solicitor,  and  two  years 
later  he  was  made  a  counsellor.  Shortly  afterwards 
the  elder  Sedgwick  retired  from  the  firm,  and  the 
younger  brother,  Robert,  took  Mr.  Field  into  partner 
ship.  Up  to  this  time  his  struggle  for  existence  and 
education  had  been  rather  severe,  but  after  he  entered 


27 

into  partnership  with  Mr.  Sedgwick  prosperity  came  to 
him,  to  endure  until  the  day  of  his  death.  The  firm  of 
Sedgwick  &  Field  lasted  until  1835,  when  Mr.  Field 
began  to  practise  on  his  own  account.  Immediately 
as  many  clients  as  he  could  desire  came  to  him.  He 
was  then  recognized  as  one  of  the  ablest  young  men  at 
the  bar,  and  who  had  a  great  future  before  him. 

One  of  the  things  which  is  remembered  in  connection 
with  Mr.  Field's  career  was  the  part  he  played  in  the 
Erie  litigations.  He  was  never  more  severely  criticised 
than  he  was  for  acting  as  counsel  for  the  management 
of  the  road.  The  newspapers  inveighed  against  him 
for  lending  the  prestige  of  his  name  in  putting  forth 
his  great  skill  and  ability  in  defence  of  what  they  de 
nounced. 

Mr.  Field's  defenders,  and  they  were  not  few,  de 
clared  that  his  idea  of  professional  honor  did  not  per 
mit  him  to  refuse  his  counsel  in  important  cases  com 
ing  before  court.  He  held  that  a  lawyer  had  a  duty  to 
his  clients  which  he  was  not  at  liberty  to  throw  off  be 
cause  a  case  was  unpopular.  To  desert  a  client  when 
he  had  incurred  public  odium,  justly  or  unjustly,  would 
have  been  an  act  of  cowardice  and  a  professional  dis 
grace.  Mr.  Field  drew  a  broad  and  deep  line  between 
his  duty  as  a  practitioner  and  as  a  law  reformer.  As 
counsel  defending  his  clients  in  the  Erie  suits  he  used 
the  writ  of  injunction  as  it  had  seldom  been  used,  but 
when  he  was  called  upon  to  improve  and  simplify  the 
statutes  he  condemned  the  facility  with  which  such  a 
writ  could  be  obtained,  and  urged  its  restrictions.* 

*  Mr.  Field  thus  speaks  of  professional  ethics  in  his  address  to  the 
graduating  class  of  the  Albany  Law  School,  March  23,  1855  :  "  There 
is  no  profession,  not  even  the  military,  which  puts  in  use  the  senti- 


28 


THE    CASE    OF   TWEED. 

A  few  days  ago  there  died  in  this  city  a  man  who 
gained  great  fame  by  defending  William  Tweed.  John 
Graham  had  almost  passed  beyond  the  public  ken. 
David  Dudley  Field  had  found  additional  fame  in  de 
fending  those  prosecutions  against  Tweed,  who  had 
been  convicted  upon  twelve  counts  of  the  indictment 
and  sentenced  by  Judge  Davis  to  one  year's  imprison 
ment  on  each  of  them,  making  twelve  years  in  all.  Mr. 
Field  declared  that  the  judge  was  wrong  in  pronouncing 
this  cumulative  sentence,  as  it  was  called. 

When  Tweed  had  been  a  year  in  prison  Mr.  Field 
secured  a  writ  of  habeas  corpus  and  demanded  Tweed's 
release.  It  was  the  first  time  that  a  writ  of  habeas 
corpus  had  been  invoked  for  such  a  purpose.  The 
customary  procedure  in  such  a  case  would  have  been  a 
writ  of  error.  ^The  Supreme  Court  decided  against  Mr. 

ment  of  honor  more  than  our  own.  There  are  daily  intrusted  to  us 
the  property,  the  reputation,  the  lives  of  our  clients:  yet.  when  have 
they  been  betrayed  ?  The  secrets  of  families  are  in  our  keeping,  and 
who  will  complain  of  their  having  been  divulged  ?  So  far  as  the  re 
lations  of  the  lawyer  to  his  client  are  alone  concerned,  nothing  could 
be  more  unexceptional :  they  are  under  the  safeguard  of  that  honor 
which  has  never  yet  failed  to  regulate  and  preserve  them.  And  what 
I  conceive  alone  to  be  wanting  is  to  extend  the  same  sentiment  be 
yond  the  client  to  the  adverse  party  and  his  witnesses,  and  to  the 
court.  The  fundamental  error,  on  this  head.  I  suppose  to  arise  from 
forgetting  that  the  profession  of  a  lawyer  is  a  means  to  an  end,  and 
that  end  the  administration  of  justice.  His  first  duty  is  undoubtedly 
to  his  own  client,  but  that  is  not  the  only  one :  there  is  also  a  duty  to 
the  court  that  it  shall  be  assisted  by  the  advocate  :  a  duty  to  the  ad 
versary  not  to  push  an  advantage  beyond  the  bounds  of  equity :  a 
duty  to  truth  and  right,  whose  allegiance  no  human  being  can  re 
nounce  :  and  a  duty  to  the  State,  that  it  shall  not  be  corrupted  by  the 
example  of  unscrupulous  insincerity." 


Field,  but  the  Court  of  Appeals  unanimously  reversed 
the  decision  of  the  lower  court  and  ordered  Tweed 
released. 

The  antagonism  between  Judge  Davis  and  Mr.  Field 
during  the  suit  was  intensely  bitter.  Tweed's  other 
counsel,  Mr.  Graham,  Mr.  Fullerton,  and  Mr.  Bartlett, 
signed  a  petition  requesting  Judge  Davis  not  to  preside 
at  a  subsequent  trial,  on  the  ground  that  he  had  already 
expressed  an  opinion  in  the  case.  Judge  Davis  called 
these  lawyers  before  him,  reprimanded  them  severely, 
and  fined  them  for  contempt  of  court. 

Mr.  Field  was  in  Europe  at  the  time.  When  he  re 
turned  he  sent  an  indignant  letter  to  the  Albany  Law 
Journal,  reaffirming  in  stronger  terms  all  that  was  said 
in  the  petition,  and  challenging  Judge  Davis  to  punish 
him  for  contempt  of  court.  Judge  Davis  gave  no  pub 
lic  heed  to  this  letter,  but  he  never  sat  on  the  bench  in 
any  of  the  Tweed  suits  that  followed  in  which  Mr. 
Field  appeared.* 


*  On  this  subject  the  American  Law  Keview,  in  its  May  and  June 
number  of  1894,  observes  : 

"  He  was  subjected  to  much  criticism  because  of  having  been  coun 
sel  for  William  M.  Tweed  ;  but  we  do  not  understand  that  in  what  he 
did  in  behalf  of  Tweed  he  stepped  beyond  the  bounds  of  professional 
propriety.  Tweed,  though  an  enormous  criminal,  had  a  right  to 
counsel  and  to  be  defended  ;  and  it  was  the  duty  of  Mr.  Field,  as  his 
counsel,  to  see  that  he  had  his  legal  rights,  and  that,  if  punished,  he 
should  be  punished  only  according  to  law.  The  right  of  the  criminal 
to  counsel  is  equal  to  the  right  of  the  innocent,  and  the  criminal  has 
in  this  right  all  the  rights  of  the  innocent.  It  cannot  be  certainly 
known  in  advance  of  a  judicial  inquiry  whether  a  man  accused  of 
crime  is  guilty  or  innocent  of  that  of  which  he  stands  accused.  It  is 
contrary  to  the  genius  of  our  law  and  unworthy  of  any  civilized  com 
munity,  that  he  hould  be  punished  without  the  opportunity  of  mak 
ing  a  competent  defence  ;  and  the  privilege  of  counsel  is  one  of  the 
means  of  enabling  him  to  make  a  competent  defence  and  of  making 


30 

The  reconstruction  policy   of   the  Republican  party 
after  the  war  was  opposed  by  Mr.  Field,  and  he  was 


the  trial  an  inquisition  in  which  both  sides  of  the  controversy  are  ex 
hibited  to  the  jury,  and  not  an  ex  parte  proceeding  in  which  the  gov 
ernment  alone  is  heard." 

On  this  subject  Mr.  Field,  in  addressing  the  jury  in  the  Tweed 
case,  spoke  as  follows  of  the  rights  of  parties  and  the  duties  of 
counsel : 

"  From  the  time  when  this  suit  was  brought  last  spring,  down  to 
the  time  of  trial,  we  heard  nothing  but  denunciations  of  the  defence 
for  impeding  the  course  of  justice.  There  was,  indeed,  no  real  de 
fence,  it  was  said,  and  repeated  so  often  that  they  who  said  it,  at  first 
in  ignorance  or  bad  faith,  may  have  come  at  last  to  think  they  had 
reason  to  believe  it.  "We  have  now  reached  a  decisive  trial  of  the 
merits,  if  a  first  trial  of  a  cause  so  important  can  ever  be  thought 
decisive,  and,  after  two  months  of  hard  labor,  what  is  the  result  ? 
Why,  that  the  plaintiffs  are  already  defeated  in  respect  to  more  than 
two  millions  of  their  claim,  a  sum  worth  contesting  for,  to  my  think 
ing,  and  we  are  now  coming  to  you,  gentlemen,  to  decide  whether  the 
claim  shall  not  be  still  further  reduced  or  rejected  altogether. 

"Above  all  other  things  is  justice  :  success  is  a  good  thing  ;  wealth 
is  good  also  ;  honoris  better;  but  justice  excels  them  all.  It  is  this 
which  raises  man  above  the  brute,  and  brings  him  into  communion 
with  his  Maker.  To  be  able  to  stand  impartial  in  judgment,  amid 
circumstances  which  excite  the  passions,  to  maintain  your  equipoise, 
however  the  surging  currents  may  be  around  you,  is  to  have  reached 
the  highest  elevation  of  the  intellect  and  the  affections.  To  have  the 
power  of  forgetting  for  the  time  self,  friends,  interests,  relationship, 
and  to  think  only  of  doing  right  towards  another,  a  stranger,  an 
enemy  perhaps,  is  to  have  that  which  man  can  share  only  with  the 
angels,  and  with  Him  who  is  above  men  and  angels. 

"  The  part  which  you  are  now  called  to  perform  in  an  official  act, 
designed  to  be  an  act  of  justice,  is  unhappily  beset  with  difficulties. 
The  just  indignation  of  a  betrayed  and  defrauded  people,  the  abhor 
rence  that  every  true  man  feels  of  robbery,  public  or  private,  the  cry 
for  redress,  the  thirst  for  vengeance,  the  suspicions  which  fall  alike 
upon  the  innocent  and  the  guilty,  the  corruption  of  our  politics  long 
accumulating,  and  more  and  more  corrupted  by  the  demoralizations 
of  the  war,  the  malversations  in  office,  which  seem  to  grow  day  by 
day,  the  stories  of  these  wrongs  repeated,  exaggerated,  distorted  by 


31 

retained  in  many  of  the  great  cases  growing  out  of  the 
legislation  of  that  period,  cases  which  came  before  the 


a  press  which  lives  upon  sensatiou,  and  operating  upon  a  people  be 
coming  every  year  less  sedate  and  more  impulsive,  until  it  seems 
ready  to  fall  under  the  reproach  once  cast  upon  an  ancient  race,  '  un 
stable  as  water,  thou  shalt  not  excel ' — all  these  things  have  brought 
us  into  a  condition  as  frightful  as  it  is  abnormal,  which  would  almost 
justify  for  once  the  language  which  the  greatest  of  English  dramatists 
has  used  for  other  turbulent  times  :  '  Judgment  has  fled  to  brutish 
beasts,  and  men  have  lost  their  reason.' 

"It  is  easy  to  see  what  act  of  each  of  us  would  commend  us  most 
to  the  clamorers  of  the  hour.  If  the  learned  judge,  who  has  presided 
with  so  much  dignity  and  patience,  had  yesterday  announced  from 
the  bench  that  the  defence  is  a  miserable  subterfuge,  unworthy  of  a 
moment's  serious  consideration,  instead  of  ruling  as  he  did,  he  would 
have  been  applauded  this  morning  by  half  the  newspapers  of  the  city 
as  a  Daniel  come  to  judgment ;  if  you,  gentlemen  of  the  jury,  were 
to  render  a  verdict  for  the  whole  amount  claimed,  without  leaving 
your  seats,  you  would  be  greeted  with  the  welcome  of  good  and 
faithful  servants  ;  and  if  we,  who  are  conducting  the  defence,  with 
what  fidelity  you  may  judge,  were  to  betray  our  client,  and  suffer 
judgment  to  pass  against  him,  with  only  a  seeming  effort  in  his  behalf, 
we  should  have  the  comfort  of  being  informed  in  the  same  newspapers 
that  we  had  half  redeemed  ourselves  from  the  disgrace  of  defending 
him  at  all.  This  might  happen  to-day.  But  how  would  it  be  ten 
years  hence  ?  If  you  should  then  look  back  to  this  court-room  and 
these  surroundings,  and  read  the  journals  which  you  read  this  morn 
ing,  and  those  others  which  you  have  read  from  day  to  day  during 
the  trial,  what  would  you  say  or  think  ?  Are  you  sure  that  you  would 
then  regard  most  of  the  comments  on  this  trial  which  you  now  see 
printed  and  spread  before  your  eyes  each  day  as  anything  better  than 
the  babblements  of  idiots  ? 

"How  will  it  be  with  each  of  us  in  our  judgment  of  ourselves? 
How  will  it  be  with  a  new  question  ?  What  you  do,  what  the  judge 
does,  what  the  counsel  do,  will  be  thought  of  for  a  long  time  here 
after.  There  are  many  other  people  than  those  who  now  surround 
us  who  will  observe,  criticise,  and  judge  all  our  acts  without  partiality 
and  without  passion. 

"  For  myself,  personally,  this  trust  has  been  an  occasion  of  great 
embarrassment.  Severe  illness  in  my  family  during  the  whole  period 


0*" 


*  \»'Jf 


32 

Supreme  Court  of  the  United  States.     One  of  these,  the 
Milligan    case,    commanded   special    attention    among 


has  caused  me  anxiety  by  day  and  interrupted  sleep  by  night,  which 
have,  in  a  measure,  unfitted  me  for  the  discharge  of  my  whole  duty 
to  my  client.  What  that  duty  is,  that  is  to  say,  what  is  the  duty  of  an 
advocate  to  his  client,  I  have  had  frequent  occasion  to  explain,  and 
every  day's  experience  and  observation  have  but  served  to  confirm 
the  convictions  of  my  earlier  life.  The  ignorant  and  the  wicked 
always  wish  to  take  the  law  into  their  own  hands.  The  wise  and  the 
good  get  the  best  judges  they  can,  procure  as  good  laws  as  they  are 
able,  and  leave  the  administration  of  justice  to  those  to  whom  it  is 
confided  and  who  alone  are  competent  to  its  due  performance. 

"  In  this  country  we  who  rejoice  that  we  are  the  heirs  of  all  the  ages 
have,  in  our  own  conceit,  at  least,  built  on  broader  foundations  than 
our  fathers  and  with  stronger  walls  the  defences  of  human  rights, 
and  among  them  all  there  is  not  one  of  greater  significance  than  this, 
that  no  man  shall  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law.  The  people  of  our  State  have  placed  it  in  their  State 
constitution,  and  since  the  late  troublous  times  the  people  of  the 
whole  country  have  placed  it  in  the  Constitution  of  the  nation.  There 
it  stands,  and  will  ever  stand,  so  long  as  either  the  nation  or  the  State 
remains,  Manet  et  manebit.  How  idle,  then,  it  is  to  talk  of  excluding 
any  person  whomsoever  from  defence  or  opportunity  of  defence  to 
any  churge  whatever  !  In  conformity  to  this  fundamental  law,  a  sum 
mons  is  served  upon  every  defendant  to  answer  a  written  complaint. 
It  is  his  right  to  answer.  How  can  he  exercise  that  right  without  the 
aid  of  counsel  ?  Therefore  he,  whoever  he  may  be,  who  denies  the 
right  and  duty  of  counsel  to  defend  any  man  seeking  his  aid  in  de 
fence,  denies  the  right  of  the  man  to  defend  himself,  and  whoever  in 
this  country  denies  the  right  of  any  man  to  defend  himself,  must  be 
accounted  either  a  knave  or  a  fool. 

"  I  am  quite  indifferent  to  the  reproaches  that  out  of  doors  have 
been  cast  upon  me  for  my  defence  in  this  case.  When,  however,  the 
reproaches  come  into  this  court-room,  and  are  made  as  if  they  could 
affect  you,  I  feel  bound  for  that  reason  alone  to  take  notice  of  them, 
so  far,  and  so  far  only,  as  to  say  that  I  despise  them.  I  prefer  the 
judgment  of  my  brethren  of  the  bar.  If  the  press  were  unanimous, 
which  it  is  not,  nor  anything  like  it,  the  bar  is  stronger  than  the  press. 
It  does  not  make  so  much  noise,  but  its  influence,  though  silent,  is 
irresistible.  Mr.  Willis  invented  the  convenient  phrase  of  the  '  upper 


33 

lawyers,  as  it  involved  the  constitutionality  of  military 
commissions  for  the  trial  of  civilians  in  States  where 
the  courts  were  open  and  in  full  exercise  of  their  juris 
diction,  as  the  Cummings  and  Garland  cases,  both  of 
which  he  argued,  involved  the  constitutionality  of  the 
test  oath.  The  next  year,  in  1868,  he  argued  the  cele 
brated  McArdle  case,  where  the  issue  was  the  consti 
tutionality  of  the  Reconstruction  act.  He  appeared 
also  in  the  Cruikshank  case,  in  1875.  Chief  Justice 
Chase  said  of  these  arguments  that  they  were  among 
the  ablest  on  the  subject  of  military  rule  and  recon 
struction  that  he  had  heard  in  or  outside  the  court. 
The  State  of  Georgia  against  General  Grant  was  another 
famous  case  in  which  Mr.  Field  appeared. 

ten  thousand.'  Using  it  here,  not  in  relation  to  general  society,  but 
to  the  society  of  lawyers,  I  venture  to  say  that  the  opinion  of  the 
upper  ten  thousand  of  American  lawyers  will  sooner  or  later  become 
the  opinion  of  the  American  people.  I  am  well  aware  that  in  this 
State  at  least  some  traces  of  the  irritation  may  yet  remain  which  a 
lifetime  of  warfare  against  legal  abuses  has  engendered.  By  many  of 
my  elder  brethren  I  am  regarded  as  one  who  has  overthrown  their 
idols  and  brought  their  false  systems  into  derision.  I  do  not  com 
plain.  I  have  had  my  reward.  The  Reformed  American  System  of 
Procedure,  as  it  is  called  by  one  of  the  best  legal  writers  of  our  time, 
opposed  and  derided  as  it  was  at  first,  has  made  its  triumphant  march 
around  the  world,  and  is  already  written  in  the  laws  of  half  the  Eng 
lish-speaking  people,  and  will  yet  be  written  in  the  laws  of  them  all. 
Even  now,  while  I  yet  speak,  they  are  writing  it  in  the  law  of  Austra 
lasia.  But  whether  any  trace  of  the  irritation  which  this  has  thus 
occasioned  is  remaining  or  not,  I  am  ready  to  leave  my  defence  of  this 
case  to  the  vindication  of  my  brethren  throughout  the  country,  con 
fident  that  they  will  say  I  am  maintaining,  as  I  have  ever  maintained 
through  a  long  life,  the  dignity,  honor,  and  independence  of  my  pro 
fession,  my  order — the  order  of  advocates,  to  which  I  am  proud  to 
belong — and  in  that  way,  for  they  are  inseparable,  the  rights  of  all 
the  people." 


34 


HIS    POLITICAL    CAREER. 

He  was  never  what  is  known  as  a  politician,  bnt  he 
exerted  a  great  influence  in  the  moulding  and  formation 
of  political  forces,  the  creation  of  political  principles. 
He  refused  an  appointment  to  a  judgeship  of  the  Su 
preme  Court  of  New  York.  He  was  a  member  of  Con 
gress  for  eight  weeks,  going  there  for  a  specific  purpose. 
The  only  other  public  office  he  ever  held  was  that  of 
commissioner  to  codify  the  laws  of  New  York,  which  he 
held  for  two  years. 

Mr.  Field's  political  faith  was  grounded  on  Jefferso- 
nianism.  He  made  his  first  political  speech  more  than 
half  a  century  ago  in  Tammany  Hall,  when  Robert  H. 
Myers  was  a  candidate  for  Mayor.  When  the  Demo 
cratic  party  soon  after  began  to  be  used  to  uphold  sla 
very  he  revolted,  and  as  far  back  as  1844  he  made  a 
speech  against  the  admission  of  Texas.  That  year  Mar 
tin  Yan  Buren  was  supplanted  by  James  K.  Polk,  who 
was  nominated  on  a  platform  committing  the  party  to 
the  annexation  of  Texas  and  the  extension  of  the  area 
of  slavery.  Texas  came  into  the  Union  as  a  result  of 
the  Mexican  War,  and  the  anti-slavery  sentiment  of  the 
North  rose  to  a  higher  pitch  than  ever.  The  Wilmot 
proviso,  adopted  by  the  House,  but  rejected  by  the 
Senate,  added  fuel  to  the  flame. 

"  Jtesolved"  it  read,  "  That,  as  an  expressed  and 
fundamental  condition  to  the  acquisition  of  any  terri 
tory  from  the  Republic  of  Mexico,  neither  slavery  nor 
involuntary  servitude  shall  ever  exist  in  any  part  of  the 
said  territory." 

Of  this  proviso  there  was  no  more  earnest  advocate 
than  David  Dudley  Field,  and  his  hand  wrote  the  secret 


35 

circular  and  joint  letter,  the  direct  object  of  which  was 
to  rally  the  anti-slavery  Democrats  of  the  North  against 
the  aggressive  pro -slavery  of  their  Southern  brethren. 
In  the  Syracuse  Convention,  in  1847,  when  the  Dem 
ocratic  party  of  the  State  was  split  on  the  slavery  ques 
tion,  Mr.  Field  offered  the  famous  resolution  that  was 
afterwards  known  as  the  corner-stone,  and  which  anti- 
slavery  newspapers  kept  standing  at  the  head  of  their 
editorial  columns.  This  was  the  resolution  : 

"Resolved,  That,  while  the  Democracy  of  New  York 
represented  in  this  convention  will  faithfully  adhere  to 
all  the  compromises  of  the  Constitution  and  maintain 
all  the  reserved  rights  of  the  States,  they  declare,  since 
the  crisis  has  arrived  when  the  question  must  be  met, 
their  uncompromising  hostility  to  the  extension  of  slav 
ery  into  the  territory  now  free  or  which  may  be  here 
after  acquired  by  any  action  of  the  Government  of  the 
United  States." ' 

Mr.  Field  supported  Van  Buren  and  Charles  Francis 
Adams  when  they  were  nominated  on  the  platform  which 
declared  against  the  extension  of  the  slavery  area.  He 
made  speeches  for  them  in  New  York  and  in  New  Eng 
land.  From  that  time  until  Fremont  was  nominated 
his  voice  and  pen  and  all  the  influences  he  could  com 
mand  were  on  the  side  of  freedom.  So  great  was  this 
influence  that  he  was  charged  right  and  left  with  dis 
loyalty  to  Democracy,  and  this  called  forth  the  letter 
of  May,  1856,  in  which  he  said : 

"  Though  I  have  not  hitherto  acted  with  the  Kepub- 
lican  party,  my  sympathies  are,  of  course,  with  the 
friends  of  freedom,  wherever  they  may  be  found.  I 
despise  equally  the  fraud  which  uses  the  name  of  De- 


36 

mocracy  to  cheat  men  of  their  rights,  the  cowardice 
which  retracts  this  year  what  it  professed  and  advo 
cated  the  last,  and  the  falsehood  which  affects  to  teach 
the  right  of  a  people  of  a  Territory  to  govern  them 
selves,  while  it  imposes  on  them  Federal  Governors 
and  Judges,  and  indicts  them  for  treason  against  the 
Union  because  they  make  a  constitution  and  laws  which 
they  prefer,  and  collect  forces  from  the  neighboring 
States  and  the  Federal  Army  to  compel  them  to  sub 
mission." 

THE   NOMINATION    OF   LINCOLN. 

When  the  Republican  Convention  met  in  Chicago  in 
1860,  to  nominate  a  President,  Mr.  Field,  though  not  a 
delegate,  (for  he  was  not  in  favor  of  the  New  York  can 
didate,)  was  present  and  very  active  in  opposing  Mr. 
Seward,  whose  defeat  was  ascribed  by  Henry  J.  Ray 
mond,  in  a  letter  to  the  New  York  Times,  largely,  if  not 
chiefly,  to  the  determined  opposition  of  Horace  Gree- 
ley  and  David  Dudley  Field. 

Mr.  James  A.  Briggs,  who  was  long  resident  in  New 
York,  and  well  known  among  the  leaders  of  the  Repub 
lican  party,  was  from  Ohio,  and  as  such  attended  the 
Chicago  Convention  to  urge  the  claims  of  Mr.  Chase. 
He  knew  all  the  parties  and  saw  the  inside  workings  of 
the  convention,  and  was  fond  of  telling  how  one  even 
ing,  when  the  tide  seemed  to  be  turning  towards  Sew 
ard,  Greeley  came  into  Mr.  Field's  room  and  threw 
himself  down  in  despair,  saying  that  "  It  was  all  over, 
and  that  Mr.  Seward  would  be  nominated  on  the  mor 
row  ; "  to  which  Mr.  Field  answered  :  "  No,  it  is  not 
over ;  let  us  up  and  go  to  work,"  and  immediately 
started  out  on  a  round  of  the  delegations,  which  he  ad 
dressed  with  the  utmost  earnestness,  and  came  back  at 
midnight,  saying,  "Lincoln  is  going  to  be  nominated!" 


37 

With  all  this  in  mind,  Mr.  Briggs  always  said  that 
"  Abraham  Lincoln  owed  his  nomination  to  David 
Dudley  Field  more  than  to  any  other  man." 

After  Mr.  Lincoln  was  inaugurated  and  the  Southern 
States  began  to  secede,  a  Peace  Congress  was  held  in 
Washington  to  consider  the  possibility  of  averting  civil 
war.  In  this  congress  Mr.  Field  was  at  the  head  of  the 
New  York  delegation,  and,  while  anxious  for  peace,  had 
the  courage  to  declare  that  he  did  not  believe  in  the 
abandonment  of  principles  ;  and  that  he  thought  it  was 
wiser  to  fight  the  conflict  out  than  to  postpone  it  to  a 
future  generation.  After  the  war  began  no  man  was 
more  determined  in  its  vigorous  prosecution. 

COUNSEL   FOK   TILDEN. 

He  voted  and  acted  with  the  Republican  party  after 
the  close  of  the  war,  but  he  did  not  approve  the  restora 
tion  and  reconstruction  measures.  He  voted  for  Ruth 
erford  B.  Hayes,  but  after  the  election  did  not  hesitate 
to  declare  that  he  believed  Mr.  Tilden  had  honestly 
won  the  victory.  The  election  of  Smith  Ely  as  Mayor 
of  New  York  made  a  vacancy  in  Congress  that  year, 
and  Mr.  Field  filled  out  the  term.  He  was  at  once  rec 
ognized  by  the  Democracy  all  over  the  country  as  one 
of  their  ablest  champions  in  the  election  contest.  The 
upholding  of  Mr.  Tilden's  interest  in  the  House  devolved 
on  him  to  a  greater  extent  than  on  any  other  of  the 
Democratic  leaders,  and  he  performed  this  work  with 
an  ability  which  won  for  him  the  admiration  of  his  op 
ponents.  He  probed  to  the  very  bottom  the  crooked 
operations  of  the  Returning  Board  of  Louisiana,  and 
showed  conclusively  that  the  members  of  it  had  been 


38 

engaged  in  a  conspiracy  to  falsify  the  returns  and  give 
the  vote  of  the  State  to  the  candidate  for  whom  it  had 
not  been  cast. 

In  the  complication  that  followed  Mr.  Field  fav 
ored  the  Electoral  Commission  bill,  and  when  that 
body  assembled  he  argued  before  it  the  case  of  Mr. 
Tilden  with  a  remarkable  degree  of  ability  and  skill. 
He  fought  every  step  and  resisted  to  the  last  the  count 
ing  in  of  Mr.  Hayes.  Though  he  submitted  to  the  de 
cision,  he  never  ceased  to  maintain  that  a  great  fraud 
had  been  committed,  and  that  a  man  who  had  not  been 
elected  was  seated  in  the  President's  chair  by  unscrupu 
lous  partisanship.  It  was  after  this  that  Mr.  Field  re 
turned  to  the  Democratic  fold. 

THE   WRITER   OF    OUR   CODES. 

But  the  great  work  of  Mr.  Field  was  neither  in  poli 
tics  nor  in  his  regular  practice  as  a  lawyer.  The  great 
work  of  his  life,  and  that  which  gave  him  the  greatest 
fame,  were  his  splendid  services  in  the  cause  of  law  re 
form.  He  laid  the  foundation  of  the  great  monument 
of  codification  which  he  erected,  more  than  forty  years 
ago  in  a  letter  to  Gulian  C.  Verplanck. 

He  was  defeated  in  his  effort  to  become  a  member  of 
the  Constitutional  Convention  in  1846,  but  he  made 
himself  so  effectively  heard  in  it  that  the  convention 
adopted  the  novel  scheme  of  abolishing  the  distinction 
between  courts  of  law  and  courts  of  equity,  and  substi 
tuting  a  code  in  place  of  common  law  practice  and 
pleading,  and  directed  the  appointment  of  commission 
ers  to  prepare  codes.  He  was  known  to  be  so  radical 
that  he  was  at  first  refused  an  appointment  on  the  com- 


39 

mission,  but  he  obtained  a  place  before  it  began  its 
work.  From  that  time  until  his  death  he  was  the  un 
disputed  leader  of  law  reform.  The  great  work  began 
timidly  and  proceeded  slowly.  The  first  instalment  of 
the  Code  of  Civil  Procedure  was  reported  to  the  Legis 
lature  in  February,  1848,  and  became  the  law,  with 
slight  alterations,  in  July  following.  This  was  only  the 
beginning.  Four  different  reports,  embodying  the  resi 
due,  were  made  between  that  date  and  January,  1850. 

HIS    NEW    CIVIL    CODE. 

In  1865  Mr.  Field  submitted  three  other  codes  to  the 
Legislature :  the  Penal  Code,  the  Code  of  Criminal 
Procedure,  and  the  Civil  Code.  The  Penal  Code  was 
adopted  in  1882,  and  the  Code  of  Civil  Procedure  the 
year  before. 

The  Civil  Code,  which  Mr.  Field  had  first  prepared, 
had  been  so  added  to,  so  changed,  that  instead  of  be 
ing  contained  in  one  volume,  it  made  three  volumes  as 
large  as  a  Family  Bible.  Therefore,  Mr.  Field  sub 
mitted  a  new  Civil  Code.  It  has  not  yet  been  adopted. 
The  measure  has  come  up  repeatedly  in  the  Legisla 
ture,  and  been  passed  by  one  House  or  the  other. 
Twice  it  passed  both  Houses,  but  was  vetoed  by  Gov 
ernor  Robinson  and  Governor  Cornell. 

Meanwhile  the  general  code  system  of  New  York  has 
been  adopted  by  twenty-four  States  and  Territories. 
The  Criminal  Code  has  been  adopted  in  eighteen  States 
and  Territories.  Mr.  Field  substantially  rewrote  the  Civil 
Code  eight  times,  and  some  parts  of  it  as  many  as  eigh 
teen  times.  Mr.  Field's  adopted  code  work  stands  as  a 
great  monument  to  him,  even  though  it  has  taken  many 


40 

decisions  to  determine  just  what  some  of  its  sentences 
really  mean,  and  even  though  on  some  points  adequate 
construction  has  not  yet  been  reached. 

AN    INTERNATIONAL   CODE. 

At  the  meeting  of  the  British  Association  in  Man 
chester  in  1866,  Mr.  Field  proposed  a  revision  of  the 
entire  body  of  international  law.  He  was  appointed 
then  a  member  of  a  committee  of  jurists  from  different 
countries  to  make  a  revision  that  would  be  acceptable, 
or  that  should  become  the  basis  of  a  revision.  It  was 
not  possible  for  the  committee  to  act  in  concert,  and 
Mr.  Field  took  the  whole  work  upon  himself.  The  re 
sult  of  his  labor  was  a  large  volume,  which  he  presented 
in  1873  to  the  Social  Science  Congress.  It  was  en 
titled  "  Outlines  of  an  International  Code."  It  at 
tracted  the  attention  of  the  most  eminent  jurists  in  the 
world,  and  has  been  translated  into  French  and  Italian. 

Mr.  Field  was  thrice  married.  His  first  wife  was 
Jane  Lucinda  Hopkins,  of  Stockbridge,  who  died  in 
1836,  a  cousin  of  Mark  Hopkins,  President  of  Williams 
College  ;  his  second,  Mrs.  Harriet  Davidson,  widow  of 
James  Davidson,  who  died  in  1864  ;  his  third,  Mrs. 
Mary  Elizabeth  Carr,  widow  of  Dr.  Samuel  J.  Carr,  who 
died  in  1876. 

Of  his  three  children  only  one  survives  him,  a  daugh 
ter,  who  was  married  in  1870  to  Sir  Anthony  Musgrave, 
who  was  successively  Governor  of  Newfoundland,  Brit 
ish  Colombia,  Natal,  South  Australia,  Jamaica,  and 
Queensland. 

Mr.  Field  retired  from  active  practice  in  1885,  but  he 
did  not  give  up  the  law  altogether,  still  acting  as  coun 
sel  for  several  great  corporations.  His  home  was  at 


41 

No.  22  Gramercy  Park,  where  he  had  a  valuable   law 
library. 

HIS    PERSONALITY. 

Mr.  Field  was  six  feet  two  inches  tall,  broad-chested 
and  powerfully  made,  and  walked  with  an  erect  figure. 
His  forehead  was  bald  and  his  hair  thin.  He  enjoyed 
almost  perfect  health  up  to  within  two  years  ago,  when 
he  began  to  show  signs  of  failure.  Not  long  ago  he 
was  asked  to  what  he  attributed  his  remarkable  good 
health,  and  he  replied  :  "  First  a  good  constitution,  and 
second,  hard  work."  "  Hard  work,"  he  added,  "  has 
never  killed  any  one  ;  idleness  has  slain  thousands. 
Then  again  exercise  has  helped  me.  I  have  never  al 
lowed  a  day  of  my  life  to  pass — hot,  cold,  wet,  or  dry — 
without  walking  several  miles  in  the  open  air.  Cabs 
and  street  cars  I  cannot  abide.  As  for  eating  and  drink 
ing,  I  follow  no  special  rule.  I  take  what  I  like  and 
let  the  rest  alone.  I  find  that  course  to  agree  with  me." 

For  many  years  Mr.  Field,  taking  his  daily  exercise, 
was  a  familiar  figure.  Always  sought  after  socially,  he 
has  preferred  of  late  years  the  quiet  and  peace  of  his 
library.  The  last  public  honor  bestowed  upon  him  was 
the  gift  of  a  gold  medal  containing  $100  worth  of  metal. 
It  was  one  of  two  struck  off  in  the  Philadelphia  Mint 
at  the  order  of  the  American  Bar  Association.  The 
other  was  given  to  the  Earl  of  Selborne,  better  known 
in  this  country  as  Sir  Eoundell  Palmer. 


[From  the  New  York  Evangelist,  April  19,  1894.] 

The  event  of  the  week  has  been  the  death  of  DAVID 
DUDLEY  FIELD.  While  we  are  writing  they  are  laying 
him  to  rest  in  that  cemetery  in  the  Berkshire  Hills,  be- 


4:2 

side  his  parents  and  brothers  and  the  wife  of  his  youth, 
the  mother  of  his  children.  The  chimes  are  ringing 
from  the  tower  that  he  gave  to  Stockbridge,  his  beloved 
summer  home,  as  a  lasting  memorial  to  his  honored 
parents ;  note  by  note  those  silvery  tongues  drop  down 
the  melody  of  the  hymns  he  loved  so  well,  the  chiming 
hymns  that  so  lately  as  last  summer  he  delighted  to 
listen  to,  floating  upward  on  the  air  to  his  home  on  the 
hillside,  dropping  now  like  angel's  tears  upon  his  grave. 
Only  one  brother — the  editor  of  this  paper — is  with 
him  as  they  lay  him  away  to  rest ;  for  the  other  sur 
viving  brother,  Justice  Stephen  J.  Field,  was  not  in 
strength  to  bear  the  exposure  at  this  season  of  the  year. 
His  place  is  filled  by  nephews  and  other  relatives  and 
by  the  towns-people  of  Stockbridge,  gathered  to  pay 
the  last  honors  to  him  to  whom,  as  a  public-spirited 
and  generous  fellow-citizen,  they  owe  so  much. 

The  news  of  his  death  came  upon  the  community- 
still  more  upon  his  family — with  a  terrible  shock. 
Only  two  days  before  he  had  landed  from  Europe  in 
high  health  and  spirits,  "  in  splendid  condition,"  as 
Dr.  Field  telegraphed  to  Justice  Field  in  Washington. 
A  sudden  chill,  a  brief  and  almost  painless  illness,  and 
he  had  breathed  his  life  away  as  calmly  and  sweetly 
as  ever  he  fell  asleep  in  his  mother's  arms.  It  was  a 
lovely  ending  to  a  noble  life,  and  well  might  the  city 
and  the  State,  and  even  the  nation,  cease  awhile  from 
their  activities,  in  deep  respect  for  such  a  man.  The 
flags  were  lowered  to  half-mast  as  soon  as  it  was  known 
that  he  had  passed  away  ;  the  Courts  of  Common  Pleas 
adjourned,  and  both  branches  of  the  Legislature  at 
Albany. 

His  was  a  life  for  which  no  words  of  appreciation 


43 

can  be  called  too  eulogistic,  because  it  was  wholly 
dedicated  to  a  noble  purpose.  The  great  powers  of 
his  mind,  the  deep  devotion  of  his  heart,  were  not 
frittered  away  upon  many  minor  interests,  however  im 
portant  ;  in  this  his  life  was  as  nearly  perfect  in  unity 
of  purpose  and  in  continuity  of  effort  as  it  may  be 
given  to  human  life  to  be.  His  whole  life  was  a  coun 
sel  of  perfection.  From  his  early  manhood  he  had 
before  him  one  high  aim,  to  free  the  law  from  techni 
calities  and  make  justice  prevail — that  divine  attribute 
in  which  are  summed  up  all  the  virtues,  the  tender  and 
merciful  no  less  than  the  strenuous  and  stern.  And 
to-day  there  is  not  a  quarter  of  the  globe  that  does  not 
feel  the  influence  of  this  life-long  purpose.  To  quote 
from  an  editorial  notice  in  The  Sun  : 

"  His  Code  of  Civil  Procedure,  originally  adopted  in 
New  York,  was  the  model  of  similar  codes  in  a  score  of 
other  States,  and  has  been  copied  in  British  colonies  in 
all  parts  of  the  globe.  Its  essential  features  are  em 
bodied  in  the  existing  system  of  procedure  in  the  High 
Court  of  Justice  in  England.  All  over  the  world, 
wherever  the  prevailing  jurisprudence  has  had  its 
origin  in  the  English  common  law,  the  form  and  man 
ner  of  conducting  litigations  and  transacting  the  busi 
ness  of  the  courts  are  due  largely  to  the  influence  of 
David  Dudley  Field." 

Civil  procedure  was  not  the  only  department  of  the 
law  to  occupy  his  attention.  Eighteen  States  and  Ter 
ritories  have  adopted  his  criminal  code ;  while  his 
"  Outlines  of  an  International  Code,"  presented  to  the 
Social  Science  Congress  in  1873,  attracted  the  atten 
tion  of  all  jurists,  and  has  been  translated  into  French 
and  Italian. 


44 

The  ablest  minds  of  England  were  glad  to  own  the 
debt  they  owed  to  him.  Some  years  ago,  as  he  was  on 
the  eve  of  sailing  for  America,  he  was  invited  to  attend 
a  session  of  an  English  Commission  created  for  the 
purpose  of  revising  the  laws  on  the  basis  of  the  prin 
ciple  to  which  his  life  had  been  given.  He  went ; 
there  were  present  five  men  who  at  one  time  or  another 
had  held  the  office  of  Lord  Chancellor — the  highest 
legal  position  in  Great  Britain.  Through  a  long  even 
ing  they  took  counsel  together,  and  when  at  last  the 
session  broke  up,  the  then  Lord  Chancellor  thanked 
Mr.  Field  in  the  warmest  terms  for  his  services  to  the 
cause  of  justice  in  the  world.  Tributes  no  less  intel 
ligent,  if  from  men  less  distinguished,  it  has  many  a 
time  been  his  fortune  to  receive. 

In  these  days  just  past  such  tributes  have  been  many 
and  most  appreciative.  A  few  extracts  from  the  daily 
papers  may  properly  find  a  place  here.  The  Herald 
said  of  him : 

"  Xo  man  ever  raised  a  higher  standard  of  the  func 
tion  of  a  lawyer  or  aimed  more  devotedly  to  reach  it. 
In  his  own  words,  *  The  true  function  of  the  lawyer  is 
not  alone  to  guide  his  clients  aright,  not  alone  to  gain 
lawsuits,  not  alone  to  win  fame  or  fortune,  but  to  make 
the  law  itself  better/  On  this  principle  Mr.  Field  acted 
from  the  beginning  to  the  end  of  his  remarkably  long 
career  at  the  bar.  ...  It  may  be  a  long  time  yet 
before  codification  of  the  law  of  nations  and  interna 
tional  arbitration  are  formally  adopted  by  the  leading 
powers  of  the  world.  But  when  that  era  in  the  prog 
ress  of  nations  is  reached,  no  name  will  be  more  glorified 
than  that  of  David  Dudley  Field,  and  no  country  will 
be  entitled  to  higher  honors  than  that  of  which  he  was 
a  citizen." 


45 

From  the  Brooklyn  Eagle  come  words  which  might 
be  deemed  extravagantly  eulogistic,  did  they  not  evince 
so  true  an  apprehension  of  the  noble  purpose  which 
raised  this  life  so  far  above  the  level  of  common  lives  : 

"  He  was  a  very  great  man.  His  manly  greatness  was 
expressed  in  results  which  made  the  world  better  for  his 
living  in  it,  and  which  will  make  the  world  forever  bet 
ter  because  he  lived  in  it.  He  added  signal  causes  to 
the  claim  of  the  nineteenth  century  to  fame,  to  wonder, 
to  gratitude,  and  to  emulation  evermore.  He  made  it 
the  century  of  law  codification.  That  should  be  written 
with  steam  navigation,  telegraphy,  the  telephone,  the 
phonograph,  the  locomotive,  the  policy  of  arbitration, 
the  emancipation  of  the  serfs  and  the  freedom  of  Afro- 
Americans  amoag  the  immortal  and  invaluable  achieve 
ments  of  this  century. 

"  He  grew  to  his  work.  He  began  at  the  beginnings 
of  law  reform.  He  first  sought  to  reconstitute  and  re 
organize  the  judiciary.  He  found  it  of  less  importance 
how  courts  were  made  and  graded  than  what  the  law 
itself  should  be.  So  he  undertook  the  completion  of 
codes  of  civil  and  criminal  procedure.  .  .  . 

"  It  is  no  matter  whether  men  think  his  scheme 
utopian  or  not.  On  the  scale  of  its  projection  it  may 
have  been  utopian.  .  .  .  The  benign  scheme  and 
purpose  David  Dudley  Field  had  in  view,  whether  prac 
ticable  or  not,  should  write  his  name  among  perhaps 
that  ten  of  the  human  race  who  will  be  household 
words  around  the  earth  a  thousand  years  from  now. 
Shakespeare,  Bacon,  Cicero,  Gesar,  Napoleon,  Wash 
ington,  Lincoln,  are  perhaps  seven  out  of  this  possible 
ten.  David  Dudley  Field  should,  we  think,  be  made 
the  eighth,  and,  we  think,  will  be.  The  two  others  may 
be  left  to  speculation  and  to  time. 

"  To  talk  with  him  was  a  help.  To  listen  to  him  was 
instruction.  To  know  him  was  a  liberal  education.  He 
suffered  a  little  under  the  fact  of  being  a  man  devoted 


46 

to  one  idea,  but  the  idea,  whether  attainable  at  the 
present  stage  of  development  or  not,  was  as  far  reach 
ing  and  as  uplifting  in  its  purpose  and  tendency  as  any 
ever  in  the  brain  and  heart  of  man.  .  .  .  David 
Dudley  Field's  object  was  to  simplify,  harmonize,  and 
universalize  justice.  Mankind  and  not  bhe  Bar  was  his 
thought.  Humanity  and  not  the  Judiciary  was  his 
solicitude.  The  identity  of  litigation  with  justice  was 
his  desire.  He  would  have  made  rights  so  clearly 
'  statable '  that  the  wrongs  infracting  them  would  be  as 
odious  as  obvious.  The  much  he  did  was  a  noble 
achievement.  The  more  he  sought  to  do  was  an  even 
nobler  dream.  If  his  idea  was  an  error,  its  spiritual 
quality  made  it  an  error  to  be  revered.  If  his  hope  in 
his  time  was  an  illusion,  it  is  an  illusion  which,  we  trust, 
may  ere  long  wrap  the  world  in  its  angelic  form." 

Two  men  of  all  who  have  lived  in  modern  times  have 
labored  to  realize  the  normal  unity  of  the  human  race, 
and  these  two  were  brothers.  Cyrus  W.  Field  bound 
the  whole  round  world  in  one  by  his  submarine  tele 
graph.  David  Dudley  Field  sought  to  make  all  human 
hearts  beat  in  true  harmony  through  the  realization  of 
that  idea  of  human  justice  which  is  in  the  mind  of  God. 

In  the  physical  and  in  the  moral  sphere  no  one  act, 
no  one  thought  of  man,  can  do  more  than  these  to  real 
ize  the  prayer  we  say  each  day,  "  Thy  kingdom  come  ; " 
the  prayer  of  our  Saviour  breathed  in  His  last  hours, 
"  That  they  may  all  be  one." 

Now,  after  eighty-nine  years  of  noble  service  he 
sleeps  well.  Two  years  ago,  in  the  splendid  vigor  of 
his  eighty-seven  years,  he  wrote  a  simple  poem,  pub 
lished  then  in  The  Independent,  which  we  are  glad  to 
read  again  to-day.  It  tells  us  what  life  was  to  him,  as 
full  of  simple  joys  as  of  noble  duties  ;  it  tells  us  what 


47 

death  was  to  him — no  thing  of  terror,  no  messenger  of 
dread,  but  a  true  and  kindly  friend. 

DAVID    DUDLEY    FIELD    AT    EIGHTY-SEVEN. 

What  is  it  DOW  to  live  ?     It  is  to  breathe 

The  air  of  Heaven,  behold  the  pleasant  earth, 

The  shining  rivers,  the  inconstant  sea, 

Sublimity  of  mountains,  wealth  of  clouds, 

And  radiance  o'er  all  of  countless  stars  ; 

It  is  to  sit  before  the  cheerful  hearth, 

With  groups  of  friends  and  kindred,  store  of  books, 

Kich  heritage  from  ages  past, 

Hold  sweet  communion,  soul  with  soul, 
On  things  now  past,  or  present,  or  to  come, 
Or  muse  alone  upon  my  earlier  days, 

Unbind  the  scroll,  whereon  is  writ 

The  story  of  my  busy  life  ; 
Mistakes  too  often,  but  successes  more, 

And  consciousness  of  duty  done. 
It  is  to  see  with  laughing  eyes  the  play 

Of  children  sporting  on  the  lawn, 

Or  mark  the  eager  strife  of  men 

And  nation  seeking  each  and  all, 

Belike  advantage  to  obtain 

Above  their  fellows  ;  such  is  man  ! 
It  is  to  feel  the  pulses  quicken,  as  I  hear 

Of  great  events  near  or  far, 

Whereon  may  turn  perchance 
The  fate  of  generations  ages  hence. 
It  is  to  rest  with  folded  arms  betimes, 

And  so  surrounded,  so  sustained, 

Ponder  on  what  may  yet  befall 

In  that  unknown  mysterious  realm 
Which  lies  beyond  the  range  of  mortal  ken. 
Where  souls  immortal  do  forever  dwell ; 
Think  of  the  loved  ones  who  await  me  there. 
And  without  murmuring  or  inward  grief, 

With  mind  unbroken  and  no  fear, 
Calmly  await  the  coming  of  the  Lord. 


THE  LAST  TRIBUTE. 


The  scene  in  Calvary  Church  on  Sunday  afternoon, 
April  15,  was  most  impressive  and  most  touching.  The 
great  church  was  packed,  the  whole  center  aisle  being 
given  up  to  those  who  especially  mourned  his  loss  and 
delighted  to  do  him  honor ;  his  family,  delegates  from 
various  learned  bodies  to  which  he  belonged,  and  mem 
bers  of  the  legal  profession.  So  distinguished  a  body 
of  men  is  not  often  seen.  Among  the  pall-bearers 
walked  the  Chief  Justice  of  the  United  States  and 
many  men  whose  names  are  known  wherever  distin 
guished  ability  is  honored  ;  of  the  inner  circles  of  those 
who  most  nearly  feel  his  loss,  his  own  immediate  family, 
were  two  other  Justices  of  that  most  august  judicial 
body  in  the  world,  his  brother  and  his  nephew. 

There  was  no  funeral  sermon,  no  eulogy  of  the  great 
man  who  was  gone.  Far  more  seemly,  more  touching, 
more  soothing,  the  sublime  words  of  the  burial  service, 
the  noble  resurrection  chapter,  the  sweet  processional 
and  recessional  hymns  from  many  voices  of  boys  and 
men,  going  to  meet  the  coffin  as  it  entered  the  church, 
and  preceding  it  to  its  place  in  the  chancel  and  again 
to  its  temporary  resting  place  when  the  service  was 
over. 

On  Monday  morning  the  last  journey  was  made  to 
the  place  he  loved  best  on  earth,  the  Stockbridge  home, 
the  narrow  house  in  the  rural  God's  Acre. 


DAVID  DUDLEY  FIELD. 


Words  of  his  youngest  brother  in  The  Evangelist,  April  26,  1894. 


He  is  gone  to  the  grave!  Neither  shall  he  return  to 
his  house  any  more !  He  hath  no  more  a  portion  for 
ever  in  anything  that  is  done  under  the  sun ! 

So  quickly  has  one  on  whom  I  have  leaned  all  my 
life  vanished  out  of  my  sight  that  I  am  stunned  by  the 
blow.  But  more  than  any  other  man  that  I  ever  knew, 
he  lived  while  he  did  live.  Even  when  he  had  entered 
his  ninetieth  year  he  was  so  full  of  life,  of  such  vitality, 
that  continued  until  within  a  few  hours  of  the  moment 
when  he  breathed  his  last,  that  I  can  hardly  realize  that 
I  shall  no  more  feel  the  warm  grasp  of  his  hand  or  hear 
his  cheering  voice. 

Such  a  life  cannot  end  without  leaving  a  great  void 
behind  it,  and  it  is  due  both  to  his  memory  and  to  those 
who  survive  him  that  they  should  know  something  of 
his  history  and  of  the  influences  that  made  him  what 
he  was.  He  was  not  the  child  of  fortune.  He  was 
born  under  the  humble  roof  of  a  country  minister. 
The  Hartford  Courant  (by  the  pen,  we  presume,  of 
Charles  Dudley  Warner)  says  : 

"DAVID  DUDLEY  FIELD  was  born  in  this  good  old 
State  of  Connecticut  a  little  more  than  eighty-nine 
years  ago.  But  for  the  migration  of  his  father  from  a 


50 

Connecticut  pastorate  to  a  Massachusetts  one,  he  would 
doubtless  have  followed  the  parental  footprints  to  the 
doors  of  Yale ;  as  it  was,  Williams  had  the  honor  of 
giving  him  his  sheepskin.  That  was  in  1825.  Three 
years  later  he  hung  out  his  shingle  in  the  city  of  New 
York  and  began  the  practice  of  the  law.  It  is  worth 
noting  that  in  one  of  his  first  cases  he  appeared  as 
counsel  for  a  fugitive  slave." 

In  this  city  he  lived  more  than  sixty-five  years,  and 
it  is  safe  to  say  that  there  was  no  man  better  known  by 
sight,  if  not  from  personal  acquaintance.  For  many 
years  it  was  his  custom  to  take  his  morning  exercise  on 
horseback,  and  residents  up  town,  who  were  abroad  at 
an  early  hour,  observed  him  as  he  rode  out  to  the  Cen 
tral  Park.  Still  more  familiar  was  his  figure  on  the 
street.  It  was  his  custom  to  walk  from  his  home  in 
Gramercy  Park  to  his  office  in  lower  Broadway,  and  his 
tall,  erect  figure  and  quick,  firm  step  gave  him  a  mili 
tary  appearance,  as  he  passed  on  with  the  stride  of  a 
grenadier.  Indeed  he  was  once  mistaken  on  the  Khine 
for  a  Marshal  of  France  ! 

It  was  early  in  life  that  he  rose  to  the  front  rank  of 
his  profession,  and  for  full  fifty  years  it  is  probable 
that  the  business  of  his  office  was  equal  to  that  of  any 
in  the  city. 

But  his  chief  distinction  was  not  in  the  winning  of 
great  cases,  but  in  his  efforts  for  the  reform  of  the  law, 
which  he  found  encumbered  with  technicalities,  whereby 
litigation  was  so  prolonged  that  many  a  man  felt  that 
it  was  better  to  suffer  wrong  than  to  attempt  to  secure 
justice  with  an  issue  so  doubtful  and  so  remote.  But 
in  this  movement  for  reform  he  had  to  fight,  not  only 
against  old  habits  and  traditions,  but  against  the  great 


51 

body  of  his  own  profession,  who  were  wedded  to  the 
old  forms,  with  which  they  had  become  familiar.  The 
labor  was  spread  over  a  long  succession  of  years.  It 
is  just  fifty -five  years  ago  (in  1839)  that  he  wrote  his 
first  letter  on  the  Keform  of  our  Judicial  System,  and 
then  began  the  agitation  which  was  to  occupy  him 
nearly  forty  years.  In  1851,  while  in  England,  he  had 
an  interview  with  Lord  Brougham,  who  commended  his 
efforts  for  the  fusion  of  law  and  equity,  but  doubted  if 
it  could  ever  be  effected  in  England.  He  soon  changed 
his  mind,  however ;  for  a  few  months  after  he  wrote  a 
letter  in  which  he  said  that  sooner  or  later  fusion  was 
sure  to  be  adopted  in  England. 

The  next  year  Mr.  Field  Avas  again  abroad,  and  a 
dinner  was  given  to  him  in  London  by  the  Law  Amend 
ment  Society,  at  which  Robert  Lowe,  afterwards  Lord 
Sherbrooke  (who  so  distinguished  himself  in  Parlia 
ment,  and  as  Chancellor  of  the  Exchequer  under  Mr. 
Gladstone),  paid  him  a  tribute  such  as  has  seldom  been 
paid  to  any  legislator,  living  or  dead.  Among  other 
things  he  said : 

"  He  trusted  that  his  honorable  friend,  Mr.  Field, 
would  go  down  to  posterity  with  this  glory — that  he 
had  not  only  essentially  served  one  of  the  greatest 
States  of  America,  but  that  he  had  also  provided  a 
cheap  and  satisfactory  code  of  law  for  every  colony 
that  bore  the  English  name.  Mr.  Field,  indeed,  had 
not  squared  the  circle  ;  he  had  not  found  out  any  solid 
which  answered  to  more  than  three  denominations ;  he 
had  not  discovered  any  power  more  subtle  than  elec 
tricity,  nor  one  that  would  bow  with  more  docility  to 
the  service  of  man  than  steam.  But  he  had  done 
greater  things :  he  had  laid  the  foundation  of  peace, 
happiness,  and  tranquillity,  in  the  establishment  of  a 


52 

system  which  would  make  law  a  blessing  instead  of  a 
scourge  to  mankind.  He  believed  that  no  acquisition 
of  modern  times — if  he  rightly  understood  what  had 
been  done  in  the  State  of  New  York — he  believed  that 
no  achievement  of  the  intellect  was  to  be  compared  to 
that  by  which  Mr.  Field  had  removed  the  absurdities 
and  the  technicalities  under  which  New  York,  in  com 
mon  with  this  country  and  the  colonies,  had  so  long 
groaned.  While  England  was  debating  upon  the  pro 
priety  of  some  small  and  paltry  reforms  in  the  adminis 
tration  of  law,  a  great  master  in  the  art  of  administrative 
reform  had  risen  there  in  the  person  of  his  distinguished 
friend,  Mr.  Field,  and  had  solved  the  problem  which 
they  in  England  were  timidly  debating.  America  had 
a  great  future  before  her  in  the  establishment  and  diffu 
sion  of  the  arts  of  peace.  Let  them  leave  to  others — 
to  absolute  governments — to  have  their  subjects  shot 
down  in  the  streets,  rather  than  wait  even  for  the  head 
long  injustice  of  a  court-martial ;  but  let  it  be  the  lot  of 
England,  hand  in  hand  with  America,  to  lead  the  way 
in  the  arts  of  jurisprudence,  as  well  as  in  other  arts — 
let  them  aim  at  being  the  legislators  and  the  pacificators 
of  the  world." 

But  that  was  only  the  beginning  of  the  herculean  task 
which  he  undertook,  while  carrying  on  a  large  profes 
sional  practice,  and  that  extended  over  many  years,  till 
one  by  one  appeared  five  complete  Codes  :  of  the  Civil 
Law  and  the  Criminal  Law  ;  and  of  Civil  and  Criminal 
Procedure ;  and  a  Political  Code. 

As  the  work  went  on  it  was  watched  with  great  in 
terest  in  England,  where  the  law  was  still  burdened  and 
confused  by  the  innumerable  acts  of  Parliament  passed 
through  many  centuries,  which  led  to  the  appointment 
of  a  Parliamentary  Committee  and  of  a  Crown  Com 
mission  to  consider  the  whole  subject  of  law  reform. 
In  1867  Mr.  Field  was  in  London,  and  was  invited  to 


53 

meet  there  English  reformers  and  explain  the  features 
of  the  law  reform  which  he  had  inaugurated  in  America. 
There  were  present  the  most  eminent  legal  authorities 
of  the  Kingdom,  including  five  Lord  Chancellors — Lord 
Westbury  and  Lord  Cranwortli ;  Sir  Page  Wood,  after 
wards  Lord  Hatherly ;  Sir  Hugh  Cairns,  afterwards 
Lord  Cairns ;  and  Sir  Roundell  Palmer,  now  Lord  Sel- 
borne.  The  conference  lasted  till  late  into  the  night,  and 
when  they  arose,  Lord  Hatherly  took  him  by  the  hand 
and  said  :  "Mr.  Field,  the  State  of  New  York  ought  to 
build  you  a  monument  of  gold  /" 

These  codes  were  adopted  in  part  in  half  the  States 
of  the  Union,  and  portions  of  them  in  England  and  the 
British  colonies,  to  the  most  distant  parts  of  the  empire. 
It  was  a  moment  of  triumph  for  Mr.  Field  when,  travel 
ling  round  the  world,  he  found  under  the  Southern 
Cross,  at  Singapore,  and  again  at  Hong  Kong,  the  very 
enactments  that  he  had  prepared  thirty  years  before  in 
America. 

His  last  great  service  to  civilization  was  in  what  he 
contributed  to  the  peaceful  intercourse  of  nations.  At 
a  meeting  of  the  British  Association  for  the  Promotion 
of  Social  Science  in  Manchester  in  1866,  he  proposed 
the  appointment  of  a  committee  to  prepare  an  Inter 
national  Code — a  proposal  which  was  accepted  with 
enthusiasm,  and  a  committee  appointed  of  great  jurists 
from  England,  France,  Germany,  and  the  United  States  ; 
but,  as  usual,  the  burden  fell  upon  him,  and  the  work 
which  appeared  some  years  later  was  purely  his  own. 
He  was  the  most  earnest  and  influential  advocate  on 
either  side  of  the  ocean  of  arbitration  as  the  way  of 
settling  differences  between  nations,  instead  of  going  to 
war — the  wisdom  of  which  has  been  so  splendidly  illus- 


54 

trated  in  the  settlement  of  the  Alabama  Claims  and  of 
the  question  of  the  Bering  Sea. 

All  this  is  matter  of  history.  That  to  which  I  turn 
in  this  sad  hour  is  the  inner  life  which  was  revealed 
only  to  those  who  were  closest  to  him.  To  the  world 
he  appeared  stern  and  cold  ;  a  great  combatant  in  the 
struggles  of  the  bar ;  who  never  asked  for  favors  from 
any  quarter,  however  formidable  ;  who  took  and  struck 
tremendous  blows.  But  there  was  another  side  to  the 
man  which  none  knew  but  those  who  saw  him  in  his 
own  home — a  gentleness  and  sweetness  that  showed 
itself  in  a  love  for  children,  of  which  Mr.  John  E. 
Parsons  speaks  in  the  letter  printed  below  ;  and  in  in 
numerable  acts  of  kindness  to  the  humble  and  the 
poor ;  while  in  his  domestic  circle  he  was  the  most 
affectionate  of  men  ;  and  those  who  stood  nearest  to 
him  think,  not  so  much  of  the  great  advocate  and  law 
giver,  as  of  the  warm  and  tender  heart  that  was  hidden 
under  that  iron  breast. 

All  this  came  over  me  like  a  flood,  as  I  followed  him 
to  the  grave.  It  was  in  the  old  burying  ground  at 
Stockbridge,  where  have  been  laid  to  rest  so  many  of 
the  honored  as  well  as  the  sainted  dead  for  a  hundred 
and  fifty  years,  from  the  time  of  John  Sargent,  the 
apostle  to  the  Indians,  who  desired  to  be  buried  near 
him  that  they  might  rise  with  him  at  the  resurrection. 
There  a  willow  droops  over  a  new-made  grave,  where 
we  laid  him  down  who  had  just  passed  from  among  us, 
and  turned  away  with  a  feeling  of  loneliness  that  will 
remain  till  we,  too,  are  laid  in  the  same  peaceful  spot, 
to  sleep  till  the  heavens  be  no  more.  H.  M.  F. 


55 
MR.  FIELD  AMONG  THE  CHILDEEN. 

During  the  summer  of  last  year,  which  Mr.  Field 
spent  in  the  Berkshire  Hills,  his  favorite  drive  was  to 
a  rural  retreat,  which  had  been  fitted  up  for  the  children 
who  are  sent  from  the  city  to  the  country  to  get  a  life- 
giving  and  health-giving  draft  of  fresh  air.  So  frequent 
were  his  visits  that  all  the  children  knew  him,  and  as 
he  took  his  seat  on  the  porch,  would  gather  about  him 
like  bees.  He  would  take  them  on  his  knees  and  tell 
them  stories,  and  often  pile  eight  or  ten  into  his  large 
carriage  and  send  them  off  for  a  drive  over  the  hills. 
It  was  the  frequent  occurrence  of  this  sight  which  has 
called  forth  the  following  from  Mr.  John  E.  Parsons, 
the  creator  of  that  beautiful  charity  which  bears  the 
name  of  a  beloved  daughter: 

NEW  YORK,  April  15,  1894. 
DEAR  DR.  FIELD  : 

In  a  sermon  which  I  heard  this  morning  was  told 
this  story  of  Thomas  Guthrie  :  When  near  his  end  it 
was  proposed  to  sing  to  him.  He  was  asked  to  select 
a  hymn.  "  Sing  to  me  a  bairn's  song !  "  was  his  reply. 

I  have  seen  your  brother  Dudley  in  many  of  the  ex 
periences  of  his  varied  career  ;  in  the  heat  of  the  fierce 
conflicts  of  the  profession  of  which  he  was  so  distin 
guished  a  member  ;  pressing  with  untiring  persistency 
the  reforms  with  which  his  name  will  ever  be  associated  ; 
defending  himself  with  matchless  courage  and  vigor, 
and  with  faith  which  never  wavered  against  any  impu 
tations  that  he  had  not  adhered  to  the  highest  standards 
of  personal  and  professional  ethics — exalting  that  pro- 


56 

fession  which  he  honored  and  which  was  honored  in 
him.  But  it  is  not  thus  that  I  shall  recall  him,  nor 
even  as  I  have  seen  him  drinking  in  the  invigorating 
air  of  his  Berkshire  home,  and  gazing  upon  the  Berk 
shire  Hills  which  he  loved  with  an  abiding  passion. 

My  memory  goes  back  to  the  past  summer  and  to 
the  daily  visits  which  he  made  to  St.  Helen's  Home.  I 
can  see  him  now,  with  two  or  three  little  city  waifs  on 
each  knee,  telling  them  the  stories  and  repeating  the 
verses  which  he  had  learned  as  a  little  child.  Many  of 
them  are  looking  forward  to  the  time  this  summer  when 
they  may  again  see  their  friend.  Of  all  the  honors 
which  came  to  him,  of  all  the  tributes  which  will  be 
paid  to  his  memory,  I  doubt  if  one  would  be  more 
valued  by  himself  than  the  affection  which  he  had  in 
spired  in  the  hearts  of  these  little  ones. 

"  This  is  one  of  the  greatest  pleasures  that  I  have 

ever  known,"  he   said  to  me   one   afternoon.     In   the 

name  of  his  little  friends  and  for  them  permit   me   to 

extend  sympathy  and  express  sorrow  at  this  great  loss. 

Sincerely  and  respectfully  yours, 

JOHN  E.  PARSONS. 


From  Rev.  Dr.  Henry  van  E>yke,  wlio  was  Mr.  Field's 
companion  on  his  last  voyage. 


Dear  Dr.  Field :  It  was  a  great  shock  and  sor 
rowful  surprise  to  hear  of  your  brother's  death.  He 
was  so  well  on  the  steamer  in  which  we  crossed  the 
Atlantic  together,  so  happy,  so  energetic,  such  a  cheer 
ful  and  inspiring  companion,  that  in  spite  of  his  great 


57 

age  he  seemed  young,  and  the  thought  of  death  was  far 
from  him.  1  am  sure  those  last  days  of  his  life  were 
pleasant  and  profitable  ones.  He  enjoyed  them  ;  and 
he  increased  the  pleasure  of  others.  I  shall  be  glad 
always  to  think  that  I  was  a  fellow-traveller  of  his  and 
privileged  to  listen  to  much  of  his  wise  and  cheerful 
conversation. 

To  you,  my  dear  Doctor,  in  your  sorrow  and  loneli 
ness,  I  offer  my  sincere  sympathy.  One  after  another 
the  strong  men  whom  your  family  has  given  to 
the  world  are  called  home.  I  know  your  heart  is 
heavy  with  a  brother's  grief.  But  you  have  the  best 
of  all  consolations,  the  brightest  of  all  hopes,  and  your 
sunny  faith  of  a  lifetime  will  shine  brightly  still,  and 
God  will  maintain  and  increase  your  strength  accord 
ing  to  His  promise  to  Christ  Jesus  our  Lord.  This  is 
the  sincere  prayer  of 

Yours  faithfully,  HENRY  VAN  DYKE. 


HIS  UNOBTRUSIVE  GENEROSITY. 

Mr.  Field  gave  liberally  and  largely  to  persons  need 
ing  assistance  within  his  means,  and  his  gifts  were 
various  and  numerous  :  to  aid  young  men  in  their  edu 
cation,  to  encourage  improvement  in  villages,  and 
in  aid  of  charities  for  children  of  the  poor,  or  for  the 
sick  or  infirm.  But  of  them  he  never  spoke  unless  in 
answer  to  inquiries.  He  never  proclaimed  his  benefac 
tions.  He  also  gave  twenty -five  thousand  dollars  to 
Williams  College  for  the  professorship  of  astronomy, 
and  ten  thousand  dollars  for  erecting  the  tower  in 


58 

Stockbridge  on  the  site  of  the  old  church  built  for  the 
Indians. 

A  pleasing  instance  of  his  unostentatious  generosity 
is  related  by  Mr.  Irving  Browne  in  the  London  Law 
Journal : 

"  Mr.  Field,  writes  Mr.  Browne,  was  very  frugal  in 
small  matters,  but  in  large  matters  he  was  generous. 
A  little  more  than  a  year  ago  he  wrote  me — certainly 
with  no  design  of  having  it  heralded,  at  least  in  his 
lifetime:  '  It  may  interest  you  to  know,  since  I  have 
been  charged  with  parsimony,  that  in  my  chagrin  at 
the  failure  of  the  bar  of  the  country  to  keep  its  promise, 
made  at  a  meeting  in  Washington,  after  the  death  of 
Chief  Justice  Taney,  to  look  after  his  family,  I  gave  to 
the  clerk  of  the  Supreme  Court  my  personal  bond  to 
pay  to  a  daughter  of  the  Chief  Justice  $500  a  year, 
during  her  life  or  mine,  I  forget  which  ;  and  that  I 
paid  this  annuity  from  the  date  of  the  bond  in  1873 
till  the  daughter's  death  in  1891,  so  that  I  actually  con 
tributed  out  of  my  private  funds  $9,000  to  save  the 
credit  of  the  bar.  I  had  never  seen  the  two  daughters, 
nor  the  Chief  Justice  himself,  except  on  the  bench, 
and  I  loathed  his  decision  in  the  Dred  Scott  case.' 
Mr.  Field  was  an  intense  optimist,  and  had  the  most 
profound  religious  convictions." 


PROCEEDINGS   UPON   THE   DEATH 

OF 

DAVID    DUDLEY    FIELD. 


Extract  from  the  Minutes  of  the  Association  for  the  Re 
form  and    Codification  of  the  Law  of  Nations — Reso 
lution  of  the  International  Arbitration  and  Peace  As 
sociation — Minute  of  the  Proceedings  of  the  Facidty  of 
Washington  and  Lee  University. 


The  Association  for  the  Reform  and  Codification  of  the 
Law  of  Nations. 

33  Chancery  Lane,  W.  C., 

LONDON,  &th  May,  1894. 
To  LADY  MUSGRAVE. 

My  Lady :  At  the  request  of  the  Council  of  the 
above  Association,  I  beg  to  forward  you  the  annexed 
copy  of  a  resolution  which  was  adopted  at  its  meeting 
last  evening. 

In  doing  so  may  I  take  the  liberty  of  expressing  my 
own  personal  sympathy,  and  my  regard  for  your  late 
esteemed  and  revered  father.  It  was  my  honour  and 
privilege  to  be  associated  with  him  in  the  work  of  the 
London  Peace  Congress  of  1890,  and  I  could  not  help 
being  struck  with  his  extraordinary  vigor,  ability,  and 
force  of  character  which  won  my  warm  admiration. 
I  am  yours,  very  sincerely, 

W.  EVANS  DARBY, 

Hon.  Sec.  pro  tern. 


60 

Extract  from  the   Minutes   of  the   Executive  Council 
held  on  Thursday,  3d  May,  1894 : 

"  The  Executive  Council  of  the  Association  for  the 
Reform  and  Codification  of  the  Law  of  Nations  at  this, 
its  first  meeting  since  the  death  of  the  Hon.  David 
Dudley  Field,  one  of  the  founders  and  past  President 
of  the  Association,  and  at  the  time  of  his  death  Hon 
orary  Vice-President,  desires  to  express  its  regret  at 
the  loss  which  the  Association  and  the  whole  civilized 
world  has  thereby  sustained,  and  respectfully  tenders 
its  sympathy  with  his  family  in  their  bereavement." 


International  Arbitration  and  Peace  Association. 
Offices  :  40  and  41,  Outer  Temple,  Strand, 
(Opposite  the  Royal  Courts  of  Justice.) 

LONDON,  W.  C.,  3d  May,  1894. 

MADAM  :  I  am  desired  by  the  Committee  of  this  As 
sociation  to  forward  you  the  enclosed  copy  of  a  resolu 
tion  adopted  by  the  Committee  with  reference  to  the 
death  of  your  distinguished  father,  Mr.  David  Dudley 
Field. 

Yours,  faithfully,  J.  FRED'K  GREEN, 

Secretary. 
LADY  MUSGRAVE. 

Copy  of  Resolution. 
DEATH  OF  DAVID  DUDLEY  FIELD. 

Resolved,  That  this  Committee  have  heard  with  re 
gret  of  the  death  of  Mr.  David  Dudley  Field  of  New 
York,  and  desire  to  place  on  record  their  sense  of  the 
great  services  rendered  by  him  to  the  cause  of  interna 
tional  unity,  both  as  a  jurist  in  his  "  Outlines  of  an  In 
ternational  Code  "  and  other  works,  and  by  his  lifelong 
devotion  to  the  principle  of  International  Arbitration. 

The  Committee  would  more  especially  note  the  dig- 


61 

nity  and  ability  with  which  Mr.  Field,  notwithstanding 
his  advanced  years,  presided  over  the  Second  Univer 
sal  Peace  Congress,  held  in  London  in  1890. 

The  Committee  feel  sure  that  when  the  substitution 
of  Law  for  War  in  international  affairs  shall  have  be 
come  generally  established — a  prospect  happily  in 
creasing  in  probability — the  name  of  David  Dudley 
Field  will  be  honored  among  the  most  distinguished  of 
the  pioneers  in  promoting  the  establishment  of  the 
juridical  status  among  nations  as  a  practical  step  to 
wards  the  brotherhood  and  solidarity  of  men.* 

*  In  a  letter  to  a  brother  of  the  deceased,  the  Hon.  John  Randolph 
Tucker,  of  Virginia,  thus  speaks  of  the  movement  of  Mr.  David  Dud 
ley  Field : 

"  What  a  wonderful  projection  into  the  future  he  has  pushed  his 
inventive  and  suggestive  thought  for  the  international  arbitrament  in 
peace  of  the  controversies  of  nations  !  When  his  ideal  is  realized,  as 
it  must  be,  the  world  will  lay  on  his  tomb  the  tribute  of  its  homage 
as  the  bold  and  intrepid  pioneer  in  making  the  Prince  of  Peace  the 
arbiter  of  the  international  disputes  of  the  world.  This,  even  more 
than  his  energy  and  genius  in  pressing  the  code  procedure,  will  be  the 
solid  foundation  of  his  fame." 

At  a  banquet  at  the  Hotel  Metropole  in  London,  in  July,  1890,  given 
by  members  of  the  British  Parliament  to  the  members  of  continental 
Parliaments  and  other  distinguished  persons  attending  the  Universal 
Peace  Congress,  the  Eight  Hon.  Mr.  Shaw-Lefevre  rose  and  stated 
that  he  had  been  requested  to  supply  the  place  of  Mr.  Depew,  who, 
to  the  regret  of  all,  was  absent  on  account  of  illness,  and  he  then  in 
troduced  one  of  the  guests  of  the  evening.  Mr.  David  Dudley  Field, 
who  spoke  as  follows  : 

"My  Lords  and  Gentlemen,"  began  the  distinguished  American 
jurist,  "  I  am  going  to  preach  you  a  very  short  sermon  upon  the  text 
proposed  by  Mr.  Shaw-Lefevre — an  international  parliamentary  move 
ment.  Last  week  I  had  the  honor  of  being  present  at  the  unofficial 
congress,  composed  of  private  individuals  of  many  nations,  earnestly 
bent  on  doing  what  they  might  to  further  the  cause  of  international 
arbitration.  To-night  I  am  proud  to  address  a  body  of  parliamentary 
representatives  inspired  by  the  same  lofty  ideal.  I  hear  people  de 
clare  us  visionary  enthusiasts,  dreamers,  and  unpractical  folk  chasing 
after  a  phantom. 

"  But  stop  a  moment!  Think  a  moment!  Is  it  true  we  are  un 
practical  ?  What  is  that  prayer  we  hear  Sunday  after  Sunday,  '  Give 
peace  in  our  time,  O  Lord.'  What  does  that  mean  ?  It  means  that 
we  have  the  consciences  of  the  world  with  us.  Things  change  as  time 


WASHINGTON  AND  LEE  UNIVERSITY,  LEXINGTON, 
VIRGINIA. 

At  a  meeting  of  the  faculty  of  "Washington  and  Lee 
University,  held  May  14,  1894,  the  following  minute 
was  adopted  : 

The  Faculty  of  Washington  and  Lee  University  have 
heard  with  deep  sensibility  of  the  death  of  Hon.  David 
Dudley  Field,  eminent  as  lawyer,  statesman,  and  pub 
licist,  whose  generous  gifts  to  this  institution  entitle 
him  to  the  gratitude  of  all  who  are  interested  in  its 
welfare. 

No  American  has  lived  in  this  generation  who  has 
taken  a  more  prominent  and  useful  part  in  the  advance 
ment  in  jurisprudence,  municipal  and  international. 

rolls  011.  Suppose  the  common  people  in  the  time  of  the  Plantagenets 
and  Tudors  had  claimed  the  right  to  manage  the  affairs  of  the  nation. 
What  would  the  nobles  have  said  ?  And  what  do  the  nobles  say  now  ? 
Things  have  changed,  and  things  will  change,  and  church  bells  will 
finally  be  heard  ringing  peace  over  all  the  world. 

"  IS    THAT    UNPRACTICAL  ? 

"  We  are  called  unpractical,  but  when  the  German  Emperor  de 
mands  more  battalions  for  his  armies,  and  a  representative  of  the 
groaning  German  people  rises  in  the  Reichstag  and  asks  with  whose 
blood  and  whose  money  those  battalions  are  to  be  paid  for — is  that 
unpractical  ?  And  when  the  statistician  tells  you  Englishmen  that 
during  the  whole  of  this  century,  for  every  pound  of  public  money 
raised  16s.  3%d.  have  been  spent  for  war — is  that  unpractical  ?  And 
when  you  learn  that  to-day  out  of  670  members  of  the  House  of  Com 
mons  there  are  234  ready  to  vote  for  an  arbitration  treaty,  and  that  if 
only  one  hundred  members  more  will  join  us,  the  problem  is  solved — 
is  that  unpractical  ? 

"  No!  we  are  not  unpractical,  but  the  most  practical  of  men,  and 
the  task  we  have  set  ourselves  of  arousing  public  opinion  against  the 
ghastly  horrors  of  war  is  a  noble  task. 

"  I  will  conclude  with  an  old  stanza  which  used  to  be  very  dear  to 
us  Americans  at  the  time  of  our  own  Civil  War : 

'  For  right  is  right  and  God  is  God, 

And  right  shall  surely  win  ; 
To  doubt  v/ould  be  disloyalty, 
To  falter  would  be  sin.'  " 

This  spirited  response  called  forth  enthusiastic  applause. 


63 

In  the  science  of  judicial  procedure,  in  the  promotion 
of  peace  among  nations  by  making  the  law  between 
them  certain  and  fixed,  and  by  provision  for  arbitra 
ment  of  all  difficulties  between  them,  and  in  his  broad 
and  unsectional  sympathy  with  his  whole  country  in 
upholding  the  constitutional  principles  of  the  fathers 
as  the  supreme  law  for  all  the  States,  Mr.  Field  has 
held  an  advanced  position,  which  makes  his  name  illus 
trious  in  our  history. 

In  grateful  memory  of  his  kindness  to  this  University, 
and  of  his  public  services,  the  Faculty  place  this  min 
ute  upon  their  record  as  their  testimonial  of  esteem  for 
his  character,  of  admiration  for  his  career  of  noble  ac 
tivity  for  the  good  of  mankind,  and  of  appreciation  of 
the  results  of  his  useful,  well-spent,  and  philanthropic 
life. 

A  copy  :  JOHN  L.  CAMPBELL, 

Clerk  of  the  Faculty. 


64: 


A  paper  was  read  before  the  American  Bar  Association,  at  Saratoga, 
in  August,  1894,  by  Hon.  John  F.  Dillon,  on  "  The  True  Professional 
Ideal,"  with  the  understanding  that  it  should  have  some  relation  to 
the  subject  of  legal  education,  in  one  or  more  of  its  aspects. 

In  the  article  Judge  Dillon  refers  to  the  career  of  Mr.  David  Dudley 
Field,  as  illustrating  several  phases  of  that  character.  The  article  was 
published  in  the  Albany  Law  Journal,  and  by  his  permission  it  is  re 
produced  here  entire,  with  the  exception  of  the  synopsis  given  of  the 
studies  pursued  at  the  law  school  of  Harvard  University. 


THE  TRUE  PKOFESSIONAL  IDEAL. 
BY  HON.  JOHN  F.  DILLON. 


I  have  been  honored  with  an  invitation  to  read  be 
fore  the  Section  on  Legal  Education  a  paper  on  "  The 
True  Professional  Ideal,"  with  the  implication,  I  pre 
sume,  that  it  should  have  some  relation  to  the  subject 
of  legal  education  in  one  or  more  of  its  many  aspects. 

The  time  limit  fixed  of  thirty  minutes  or  less  will  not 
enable  me  to  do  more  than  to  glance  hurriedly  at  one 
or  two  of  the  more  important  questions  that  might  be 
fitly  considered  under  the  general  title  of  "  The  True 
Professional  Ideal."  It  can  never,  I  think,  be  entirely 
out  of  place — certainly,  in  my  opinion,  it  is  not  out  of 
place  at  the  present  time — to  impress  upon  the  bar  and 
society  the  essential  dignity,  worth,  nobility,  and  use 
fulness  of  the  lawyer's  calling.  The  true  conception — 
ideal,  if  you  please — of  the  lawyer  is  that  of  one  who 
worthily  magnifies  the  nature  and  duties  of  his  office, 
who  scorns  every  form  of  meanness  or  disreputable 
practice,  who  by  unwearied  industry  masters  the  vast 
and  complex  technical  learning  and  details  of  his  pro- 


65 

fession,  but  who,  not  satisfied  with  this,  studies  the 
eternal  principles  of  justice  as  developed  and  illustrated 
iii  the  history  of  the  law  and  in  the  jurisprudence  of 
other  times  and  nations  so  earnestlj'  that  he  falls  in  love 
with  them,  and  is  thenceforward  not  content  unless  he 
is  endeavoring  by  every  means  in  his  power  to  be  not 
only  an  ornament  but  a  help  unto  the  laws  and  juris 
prudence  of  his  State  or  nation.  In  his  conception, 
every  place  where  a  judge  sits — although  the  arena  be 
a  contentious  one,  where  debate  runs  high  and  warm — 
is  yet,  over  all,  a  temple  where  faith,  truth,  honor,  and 
justice  abide,  and  he  is  one  of  its  ministers.  With  what 
majestic  port  may  not  the  lawyer  approach  that  temple 
when  he  reflects  that  he  enters  there  not  by  grace,  but 
of  right,  craving  neither  mercy  nor  favor,  but  demand 
ing  justice,  to  which  demand  the  appointed  judicial 
organs  of  the  State  must  give  heed  under  all  circum 
stances  and  at  all  times. 

There  is,  I  fear,  some  decadence  in  the  lofty  ideals 
that  have  characterized  the  profession  in  former  times. 
There  is  in  our  modern  life  a  tendency — I  have  thought 
at  times  very  strongly  marked — to  assimilate  the  prac 
tice  of  the  law  to  the  conduct  of  commercial  business. 
Between  great  law  firms  with  their  separate  depart 
ments  and  heads  and  subordinate  bureaus  and  clerks, 
with  their  staff  of  assistants,  there  is  much  resemblance 
to  the  business  methods  of  the  great  mercantile  and 
business  establishments,  situate  close  by.  The  true 
lawyer — not  to  say  the  ideal  lawyer — is  he  who  be 
grudges  no  time  and  toil,  however  great,  needful  to  the 
thorough  mastery  of  his  case  in  its  facts  and  legal  prin 
ciples  ;  who  takes  the  time  and  gives  the  labor  neces 
sary  to  go  to  its  very  bottom,  and  who  will  not  cease 


66 

his  study  until  every  detail  stands  distinct  and  luminous 
in  the  intellectual  light  with  which  he  has  surrounded 
it.  The  temptations  and  exigencies  of  a  large  practice 
make  this  very  difficult,  and  the  result  too  generally  is 
that  the  case  gets  only  the  attention  that  is  convenient 
instead  of  that  which  it  truly  requires.  The  head  of  a 
great  firm  in  a  metropolitan  city,  a  learned  and  able 
man,  was  associated  with  another  in  a  case  of  much 
complexity  and  moment.  He  expressed  warm  admira 
tion  of  the  printed  argument  of  his  associate  counsel, 
which  had  cost  the  latter  two  months  of  laborious  work, 
adding,  however,  that  he  could  not  have  given  that 
much  time  to  it  because,  commercially  regarded,  it  would 
not  have  paid  him  to  do  so. 

It  is  unquestionably  the  duty  of  the  profession  to 
preserve  the  traditions  of  the  past — to  maintain  lofty 
ideals — and  to  this  end  to  guard  against  what  I  may 
perhaps  truly  describe  by  calling  it  the  "  commercializ 
ing  "  spirit  of  the  age.  The  utterance  of  Him  who  spake 
with  an  authority  greater  than  any  lawyer  or  judge, 
"  man  lives  not  by  bread  alone,"  should  never  be  for 
gotten  or  unheeded  by  the  lawyer,  and  will  not  be  by 
any  who  come  within  the  category  of  what  may  be 
termed  the  "  Ideal  Lawyer." 

Mr.  J.  H.  Benton,  Jr.,  of  the  Boston  bar,  under  the 
conviction  that  few  persons,  even  among  those  of  the 
profession,  realized  the  full  extent  in  which  the  bar  has 
participated  in  the  government  of  this  country  and  given 
directions  to  its  policies  and  public  affairs,  read  before 
the  Southern  New  Hampshire  Bar  Association,  in  Feb 
ruary  of  the  present  year,  a  most  instructive  paper  on 
the  "  Influence  of  the  Bar  in  Our  State  and  Federal 
Government," 


67 

A  few  of  the  facts  which  he  has  laboriously  ascer 
tained  and  stated  may  be  here  briefly  mentioned  as  bear 
ing  upon  the  subject  of  the  present  paper.  Of  the  56 
signers  of  the  Declaration  of  Independence,  25  were 
lawyers,  and  so  were  30  out  of  55  members  of  the  con 
vention  which  framed  the  Federal  Constitution.  Of 
the  3,122  Senators  of  the  United  States  since  1787, 
2,068  have  been  lawyers  ;  of  the  11,889  Representatives, 
5,832  have  been  lawyers.  "  The  average  membership 
of  lawyers  in  both  branches  of  Congress  from  the  begin 
ning  has  been  53  per  cent."  In  the  present  Constitu 
tional  Convention  of  the  State  of  New  York,  133  out  of 
the  175  members  are  members  of  the  bar.  Lawyers 
constitute,  as  nearly  as  can  be  ascertained,  one  in  every 
400  of  the  male  population  of  the  United  States  at  the 
present  time.  The  statistics  show,  with  one  exception, 
that  in  the  legislatures  of  all  the  States  the  legal  pro 
fession  has,  and  always  has  had,  a  membership  exces 
sively  greater  in  proportion  to  its  number  in  the  popu 
lation  of  the  State. 

Not  less  marked  is  the  influence  of  the  bar  in  the 
executive  departments  of  the  Federal  and  State  govern 
ments.  Of  the  24  Presidents,  19  have  been  lawyers  ; 
and  Mr.  Benton  states  that  "  of  the  1,157  governors  of 
all  the  States,  578  of  the  978  whose  occupations  I  have 
been  able  to  ascertain  have  been  lawyers." 

It  is  scarcely  necessary  to  mention  the  fact  that  the 
entire  body  of  the  other  co-ordinate  department  of  the 
national  and  State  governments — the  judiciary — have 
been  members  of -the  profession.  And  in  our  polity  the 
judiciary  have  a  power  and  are  clothed  with  a  duty  unique 
in  the  history  of  the  governments,  viz.,  the  power  and 
duty  to  declare  legislative  enactments  and  executive  acts 


68 

which  are  in  conflict  with  our  written  Constitution  to  be 
for  that  reason  void  and  of  no  effect.  In  this  America 
has  taught  the  world  the  greatest  lesson  in  government 
and  law  it  has  ever  learned,  namely,  that  law  is  not 
binding  alone  upon  the  subject,  and  that  the  conception 
of  law  never  reaches  its  full  development  until  it  attains 
complete  supremacy  in  the  form  of  written  constitutions, 
which  are  the  supreme  law  of  the  land,  since  their  pro 
visions  are  obligatory  both  upon  the  State  and  upon 
those  subjected  to  its  rule,  and  equally  enforceable 
against  both,  and  therefore  law  in  the  strictest  sense  of 
the  term. 

Two  forces  in  society  are  in  constant  operation  and 
are  necessary  to  its  welfare,  if  not  to  its  very  existence  : 
the  conservative  force,  to  preserve  what  is  worth  pre 
serving  ;  the  progressive,  without  which  we  would  have 
stagnation  and  death.  The  character  and  state  of  the 
law,  as  well  as  the  social  condition  of  any  people,  is  the 
result  of  the  conflict  between  these  healthful  although 
antagonistic  forces.  As  the  ocean  keeps  itself  pure  by 
the  constant  movement  and  freedom  of  its  waters,  so 
the  like  movement  and  freedom  are  necessary  to  pre 
serve  what  is  good  in  existing  conditions,  or  to  remedy 
what  is  either  bad  or  inadequate. 

Changes  in  the  law  of  any  living  and  progressive 
society  are  therefore  absolutely  necessary  in  order  to 
make  the  law  answer  the  current  state  and  necessities 
of  the  social  organism.  So  far  as  law  is  expressed  in 
written  form,  whether  in  constitution  or  statutes,  it  is 
crystallized  and  almost,  although -perhaps  never  quite, 
stationary.  Owing  to  the  doctrine  of  judicial  prece 
dent  as  it  exists  in  our  law,  this  theoretically  makes 
what  is  adjudged  almost,  although  in  practice  not  quite, 


69 

as  stationary  as  law  in  written  form.  True  wisdom  re 
quires  that  the  law  shall  with  all  convenient  speed  be 
made  to  harmonize  with  existing  needs.  This  makes 
law  amendment  or  reform  a  constant  continuing  and 
ever  existing  necessity. 

Nothing  is  more  difficult  than  the  work  of  law  im 
provement.  It  requires  a  knowledge  of  the  law  both 
theoretical  and  practical ;  scientific,  so  as  to  know  the 
relation  of  each  department  of  the  law  to  every  other 
department ;  practical,  so  as  to  appreciate  existing  de 
fects  and  the  needed  remedy.  Doctrinaires,  jurists,  and 
legal  scholars  may  see,  indeed  are  often  the  first  to  see, 
or  to  suggest  and  urge  the  required  changes,  but  are, 
generally  speaking,  incapable  of  wisely  effecting  them. 
With  the  notable  exception  of  the  changes  wrought  in 
the  law  of  evidence,  Bentham's  vast  labors  bore  almost 
no  direct  fruit.  Austin  filled  for  many  years  a  large 
space  in  the  field  of  jurisprudence.  My  own  judgment 
is  that  his  legal  theories  have  proved  to  have  little  in 
trinsic  or  permanent  value.  Though  feeling  con 
strained  to  say  this,  I  must  also  add  that  in  my  opin 
ion  the  world  is  much  indebted  to  these  eminent  men 
for  their  bold  and  free  criticisms  of  our  laws  and  for 
arousing  the  attention  of  the  bar  to  the  need  of  amend 
ing  them,  and  especially  for  making  some  portions  at 
least  of  the  profession  in  England  and  this  country  feel 
the  need  of  a  more  scientific  jurisprudence.  Brougham, 
Mackintosh,  Romilly,  and  Langdale  were,  in  a  way, 
their  disciples,  and  labored  faithfully  in  the  cause  of 
reform  in  England.  But  they  went  about  it  in  the  con 
servative  and  timid  manner  so  characteristic  of  the 
English  mind.  Their  efforts  were  confined  to  single, 
sporadic,  specific  ameliorations  of  certain  felt  griev- 


70 

ances,  but  their  labors  proceeded  upon  no  scientific 
plan  to  effect  comprehensive  reforms  of  either  substan 
tive  law  or  of  the  law  of  procedure. 

Such,  roughly  sketched,  was  the  general  condition  of 
law  reform  when  the  late  David  Dudley  Field  entered 
upon  the  work  of  law  amendment  in  this  country.  It 
seems  to  me  that  the  career  of  Mr.  Field  illustrates  several 
phases  of  the  subject  under  discussion.  For  this  rea 
son,  as  well  as  because  it  is  proper  that  some  notice 
should  be  taken  in  this  body  of  the  labors  of  this  emi 
nent  man,  at  one  time  the  president  of  this  associa 
tion,  I  shall  refer  for  a  few  moments  to  the  main  work 
of  his  life,  and  endeavor  to  draw  from  it  the  lessons  it 
teaches.  In  my  judgment  no  mere  doctrinaire  or  closet 
student  of  our  technical  system  of  law  is  capable  of 
wise  and  well-directed  efforts  to  amend  it.  This  must 
be  the  work  of  practical  lawyers.  Mr.  Field  had  this 
needed  qualification,  for  he  was  throughout  his  long 
career  at  the  bar  a  busy  and  active  practitioner. 

When  Mr.  Field  commenced  his  work  of  law  im 
provement,  the  gap  between  the  law  as  it  existed  and 
what  the  welfare  of  the  community  required,  especially 
in  the  law  of  procedure,  was  very  wide.  The  system 
of  pleading  and  procedure  had  grown  to  be  so  techni 
cal  as  to  defeat  in  many  cases  the  cause  of  justice. 
This  was  eminently  true  of  the  common  law  system  of 
pleading  and  procedure,  and  even  the  system  of  equity 
was  equally  open  to  the  reproach  of  undue  technicality 
and  of  intolerable  delays.  The  need  for  a  cheaper, 
simpler,  and  more  expeditious  procedure  at  law  and  in 
equity  had  become  a  crying  want.  Mr.  Field,  if  he  did 
not  originate  the  idea,  clearly  put  himself  at  the  head 
of  the  movement  to  remedy  the  evil.  This  he  did  at  an 


71 

early  stage  in  his  professional  life,  and  to  this  as  well 
as  to  the  codification,  looking  to  improvement  in  crim 
inal  law  and  procedure,  as  well  as  in  substantive  law 
he  gave  without  ceasing,  being  instant  in  season  and 
out  of  season,  more  than  fifty  years  of  his  active  career, 
He  advocated  the  principle  of  codification  everywhere. 
He  was  a  man  of  strong  feelings  and  passions.  Every 
man  of  real  force  is  so,  almost  necessarily.  He,  there 
fore,  fought  for  codification  ;  and  he  fought  with  daunt 
less  courage  everybody  who  opposed  him.  We  may 
think  that  he  unduly  estimated  the  scope,  the  value, 
and  the  beneficence  of  codification.  He  may  have  done 
so.  Effective  and  true  reformers  are  apt  to  go  too  far. 
But  this  detracts  not  the  least  from  the  estimation  in 
which  he  is  justly  entitled  to  be  held  by  the  bar  and 
public.  I  do  not  wish  to  surround  him  with  a  haze  of 
golden  panegyric.  He  does  not  need  it.  Look  at  his 
public  labors  in  municipal  and  international  law,  ex 
tending  from  1839  to  1894,  and  what  lawyer  in  this 
country,  dead  or  living,  has  ever  dedicated  half  as  many 
years  as  he  to  conscientious  efforts  to  improve  our  laws 
and  jurisprudence.  In  this  view  he  stands  without  a 
peer.  Consider  the  success  which  has  crowned  his 
work  in  this  country  and  in  England  and  in  the  English 
colonies,  and  his  career  is  strikingly  distinctive.  True, 
some  of  his  schemes  of  law  amendment  failed  of  adop 
tion,  those  more  especially  relating  to  the  codification 
of  the  common  law,  but  he  seized  upon  one  principle 
which  he  made  eminently  successful,  and  which  in  turn 
made  him  famous,  and  justly  so,  namely,  the  simplifica 
tion  of  the  law  of  procedure.  The  New  York  Code  of 
1848,  in  substance  or  principle,  Mr.  Field  lived  to  see 
adopted  in  a  large  majority  of  the  States  and  Territories 


•rr:^ 

jf   1J 

IVBIU.r? 

"UiTOBSi^ 


72 

of  the  Union  and  in  the  Judicature  Act  of  1873  of  the 
British  Parliament. 

Mr  Field  had  lofty  professional  ideals  of  the  lawyer's 
duty  toward  the  law.  Love  of  the  pecuniary  gains  of 
his  calling,  though  he  was  not  insensible  to  them,  was 
yet  ever  subordinate  in  his  regard  to  those  public  labors 
which  he  felt  that  he  owed  to  his  profession  and  the 
law.  Although  in  active  practice  in  a  great  metropol 
itan  center  for  over  sixty  years,  he  accumulated  no 
more  than  some  contemporary  men  at  the  English  bar, 
and  perhaps  some  in  the  same  city  have  done  in  less 
than  a  tenth  of  the  same  period.  But  it  may  be  said 
that  he  wras  ambitious,  that  his  ambition  was  boundless, 
and  that  this  was  his  incentive.  Be  it  so.  So,  doubt 
less,  it  was.  Exercised  for  worthy  ends,  this,  so  far 
from  being  the  last  infirmity,  is  the  highest  quality  of 
noble  minds.  Nor  had  official  place,  either  for  the 
conspicuousuess  which  attracted  and  was  flattered  by 
the  public  gaze,  or  for  the  power  which  men  of  lower 
aims  who  live  only  in  the  present,  love  to  wield,  any 
controlling  charms  for  him.  His  eye  was  lifted  higher 
and  was  fixed  chiefly  on  the  generations  who  should 
come  after  him.  Of  the  present  he  regarded  himself, 
if  I  may  so  phrase  it,  as  a  tenant  for  life,  but  with  a 
reversion  in  fee  in  the  limitless  future.  Cheerful  in  the 
prolonged  autumn  of  his  days,  he  had  for  nearly  a  gen 
eration  seen  the  "leaves  fall  over  the  roots  of  the  tree 
of  life,"  but  this  as  he  looked  above  only  gave  to  his 
vision  a  freer  and  more  unobstructed  view  of  the  past 
and  future.  With  great  felicity  of  expression,  Sir 
Walter  Scott  makes  Kemble,  on  finally  leaving  the 
Edinburgh  stage,  say  he  hoped  to  enjoy 


73 

"  Some  space  between  the  theatre  and  the  grave : 
That  like  the  Koman  in  the  Capitol, 
I  may  adjust  my  mantle  ere  I  fall." 

Such,  too,  was  Mr.  Field's  hope,  doomed  however  to 
disappointment.  On  his  return  from  Europe,  only  three 
or  four  days  before  he  passed  beyond  the  range  of  our 
mortal  vision,  he  was  reported  to  have  said,  in  answer 
to  the  question  what  he  intended  to  do,  that  he  expected 
to  spend  the  coming  summer  in  the  Berkshires  at  work 
on  his  autobiography,  and  that  his  one  great  ambition 
was  to  have  his  codes  adopted  all  over  the  English- 
speaking  world.  All  old  men  live  in  the  past,  and  to 
this  Mr.  Field,  who  had  crossed  the  Delectable  Moun 
tains  arid  was  already  in  the  country  of  Beulah,  was  no 
exception.  It  was  natural  that  he  should  love  to  sur 
vey,  in  the  serene  evening  of  his  days,  the  toils  and 
labors  which  had  marked  his  active  life  and  the  suc 
cesses  with  which  these  had  been  rewarded.  But  only 
men  of  the  higher  type  can  turn,  as  turn  he  did,  to  the 
future,  see  it  spread  itself  out  before  their  enraptured 
gaze,  feel  themselves  fanned  by  its  intoxicating  breezes, 
behold  its  sunlit  heights  and  proudly  feel  that  it,  too, 
is  their  inheritance. 

With  this  let  us  contrast  the  life  and  professional 
career  of  an  eminent  English  contemporary  of  Mr. 
Field's  earlier  life.  I  refer  to  Sir  William  Follett,  who 
in  his  day  was  as  distinctly  the  leader  of  the  bar  as  was 
Lord  Erskine  in  his.  The  picture  has  been  drawn  by 
Sir  William's  own  friend,  the  accomplished  Talfourd, 
who,  in  his  "  Vacation  Rambles,"  tells  us  that  there 
was  brought  to  him  in  1846,  when  on  his  journey 
through  Italy,  the  usual  register  of  visitors,  and  that, 
turning  over  its  pages,  he  was  startled  by  the  name  of 


74 

Sir  William  Follett  written  in  tremulous  characters  just 
before  his  death,  which  had  occurred  but  a  short  time 
before  Talfourd  saw  his  signature.  After  reviewing 
Follett's  professional  career,  usually  pronounced  so 
brilliant,  Talfourd  mournfully  inquired,  "What  re 
mains  ? "  And  he  answered,  "A  name  dear  to  the 
affections  of  a  few  friends ;  a  waning  image  of  a 
modest  and  earnest  speaker,  though  decidedly  the  head 
of  the  common  law  bar ;  and  the  splendid  example  of 
a  success  embodied  in  a  fortune  of  £200,000  acquired 
in  ten  years,  the  labors  of  which  hastened  the  extinc 
tion  of  his  life  ;  these,"  he  added,  "  these  are  all  the 
world  possesses  of  Sir  William  Follett.  To  mankind, 
to  his  country,  to  his  profession,  he  left  nothing ;  not  a 
measure  conceived,  not  a  danger  averted,  not  a  prin 
ciple  vindicated ;  not  a  speech  intrinsically  worth 
preservation ;  not  a  striking  image,  nor  an  affecting 
sentiment  ;  in  his  death  the  power  of  mortality  is  su 
preme.  How  strange — how  sadly  strange — that  a 
course  so  splendid  should  end  in  darkness  so  obscure." 

Follett  did  not  discharge  the  debt  he  owed  to  his  pro 
fession,  and  therefore  did  not  answer  to  the  completest 
professional  ideal  of  the  lawyers.  Mr.  Field  not  only 
paid  the  debt  due  to  his  profession,  but  overpaid  it  and 
thus  became  its  creditor,  and  in  this  answered  more 
fully  than  lawyers  like  Follett  the  professional  ideal. 

In  the  report  on  legal  education  before  mentioned  it 
appears  that  there  are  over  fifty  law  schools  in  the 
United  States,  having  a  membership  of  more  than  six 
thousand  students — the  committee  not  having  the  means 
of  ascertaining  the  number  of  students  who  were  pur 
suing  their  studies  in  private  offices  outside  of  the  law 
schools.  I  fully  concur  in  the  following  observations 


75 

of  the  committee.  Their  soundness  will  not  be  ques 
tioned,  I  think,  by  any  one  who  hears  me :  "  The  mind 
of  the  lawyer  is  the  essential  part  of  the  machinery  of 
justice  ;  no  progress  or  reforms  can  be  made  until  the 
lawyers  are  ready.  Their  influence  at  the  bar,  on  the 
bench,  and  in  legislation  is  practically  omnipotent." 

The  following  observation  seems  to  me  to  be  specially 
weighty  and  important :  "  The  progress  of  the  law 
means  the  progress  of  the  lawyer,  not  of  a  few  talented 
men  who  are  on  the  outposts  of  legal  thought,  but  the 
great  army  of  the  commonplace  who  contribute  the  ma 
jority  of  every  occupation.  What  the  lawyers  do  not 
understand,  or  what  they  pronounce  visionary  or  im 
practicable,  will  not  be  accepted  by  the  legislatures  or 
courts  of  the  country." 

It  is  no  part  of  my  purpose  to  offer  any  observations 
upon  the  methods  of  law  instruction,  much  less  upon 
the  different  or  competing  methods  of  such  instruction 
Doubtless  the  method  of  teaching  law  or  how  it  can 
best  be  taught  is  an  important  subject,  but  it  is  not  all 
important.  It  is  wise  to  discuss  and  consider  it,  but  it 
would  not  be  wise  to  let  it  engross  our  whole  or  even 
chief  attention.  What  Pope  said  of  forms  of  govern 
ment  may,  I  think,  be  said  with  much  more  justness  of 
methods  of  teaching  :  "  That  which  is  best  administered 
is  best."  The  man  whom  nature  designed  to  be  a 
teacher  of  law  will,  despite  theories,  teach  it  after  his 
own  manner.  He  will  impress  his  own  personality  upon 
his  work.  It  is  the  man,  not  the  method,  that  tells. 
The  crucial  test  is  whether  the  teacher  can  inspire  a 
living  interest  in  the  student  and  get  from  him  the  best 
work  that  in  him  lies  ;  for,  after  all,  the  student  must 
himself  do  the  work  and  the  thinking  which  shall  ac- 


76 

complish  him  in  the  learning  of  his  profession.  Vastly 
more  important  therefore  than  the  methods  of  teaching 
is  the  course  of  instruction  or  the  branches  to  be 
taught. 

This  general  subject  is  very  fully,  and,  I  need  not  say, 
ably  discussed  in  the  report  of  the  committee  on  legal 
education  of  this  association,  submitted  in  1892.  After 
reviewing  the  course  of  instruction  in  the  law  schools 
of  this  country  (and  it  is  substantially  the  same  in  all 
of  them)  the  committee  say : 

"  It  is  evident  that  the  course  of  study,  with  a  very 
few  exceptions,  is  confined  to  the  branches  of  practi 
cal  private  law  which  a  student  finds  of  use  in  the  first 
years  of  his  practice.  It  is  a  technical  or  philosophic 
view  of  the  law  which  is  taught.  It  may  be  said  of  all 
our  law  schools  that  the  instruction  is  too  technical. 
It  is  not  elementary  enough.  The  view  of  the  law 
presented  to  the  student  is  technical,  rather  than 
scientific  or  philosophical." 

What  is  meant  by  the  course  of  instruction  being 
confined  to  private  law  which  the  student  will  find  of 
practical  use  in  the  earlier  years  of  his  practice,  may  be 
illustrated  by  the  course  of  instruction  in  what  is  justly 
regarded  as  one  of  the  very  foremost  law  schools  of 
this  country,  that  of  Harvard  University.  I  select  it 
for  illustration  because  of  the  deserved  eminence  of 
the  school  and  because  it  covers  all  the  students  em 
braced  in  a  three  years'  term. 

The  subjects  taught  and  the  books  used  show  more 
clearly  than  any  general  description  the  intensely  tech 
nical  and  practical  character  of  the  course  of  instruc 
tion.  This  may  stand,  as  I  think,  as  the  general  model 
or  even  the  highest  type  of  legal  instruction  in  this 
country. 


77 

I  agree  in  the  main  with  the  spirit  of  the  criticisms 
of  the  committee  which  I  have  quoted  above,  but  I 
would  phrase  my  own  views  in  somewhat  different 
language.  I  insist,  for  I  believe  it  to  be  true,  that  the 
stereotyped  course  of  legal  instruction  in  this  country 
is  defective,  not  so  much  for  what  it  contains  as  for 
what  it  omits.  It  is  defective  in  that  no  adequate  pro 
vision  is  made  for  instruction  in  historical  and  com 
parative  jurisprudence,  and  in  the  literature,  science, 
and  philosophy  of  the  law — in  what  may  perhaps  be 
compendiously  expressed  as  "general  jurisprudence." 
If  this  is  what  the  committee  means  by  the  expression 
that  the  course  of  instruction  is  too  technical,  I  agree 
to  it.  But  it  is  to  be  remembered  that  it  is  of  the  es 
sence  of  our  legal  systems  that  they  are  in  their  histor 
ical  development  and  nature  technical,  and  so  far  as 
they  are  so,  instruction,  to  be  adequate  and  thorough, 
must  itself  be  technical,  and  in  an  important  sense  it 
is  not  predicable  of  it  that  it  is  too  technical.  Having 
in  view  the  circumstances  which  surround  the  subject 
of  legal  education  in  this  country,  I  approve  the  wis 
dom  of  the  general  course  of  instruction  in  our  law 
schools,  so  far  as  it  gives  chief  attention  to  the  usual 
and  enumerated  branches  of  practical  private  law. 
But  I  still  insist  that  it  is  defective  in  the  want  of  ade 
quate  instruction  in  the  history  and  the  literature  of 
the  law  and  in  what  I  call  for  short  "general  jurispru 
dence." 

Great  lawyers  like  Coke  and  Blackstone,  and  Eldon 
may  be  made  by  the  current  methods  ;  but  the  growth 
of  greater  lawyers  like  Hale,  Bacon,  and  Mansfield, 
who  in  their  day  wisely  amended  and  improved  the 
law,  and  who  represent  the  higher  professional  ideals, 


78 

is  not  adequately  promoted  or  encouraged  by  the  exist 
ing  course  or  methods  of  law  instruction  in  the  law 
schools  in  this  country. 

I  fully  realize  that  to  set  up  an  impracticable  stand 
ard  defeats  the  object  sought.  Nevertheless  I  insist 
that  it  is  entirely  practicable  for  our  law  schools  to  en 
large  and  liberalize  the  scope  of  their  instruction  by 
requiring  at  least  one  hundred  hours  of  the  course  to 
be  given  specifically  to  the  subjects  which  I  have  above 
ventured  to  indicate  as  essential  to  any  well-ordered 
course  of  instruction  that  makes  any  just  claim  to  being 
adequate  or  complete. 

And  this  view  is  the  sole  practical  point  of  this  paper 
to  urge  and  enforce,  to  the  end  that  the  generations  of 
lawyers  who  shall  come  after  us  may  be  adorned  more 
abundantly  than  else  had  been  with  examples  of  the 
highest  and  truest  professional  ideals.  And  to  this  end, 
moreover,  I  should  be  glad  to  see  the  members  of  the 
section  on  legal  education  take  the  initiative  by  recom 
mending  the  American  Bar  Association  to  adopt  a  reso 
lution  in  substance  that  in  its  judgment  adequate  in 
struction  in  historical,  comparative  and  general  juris 
prudence  is  an  essential  part  of  a  thorough  course  of 
legal  education,  and  that  accordingly  it  recommends  to 
all  of  the  law  schools  of  the  country  that  such  instruc 
tion  should  be  made  a  distinct  and  specific  branch  of 
the  course  of  required  study  therein. 


79 


In  May,  1894,  Mr.  Austin  Abbott,  LL.  D.,  Dean  of  the  Law  School 
of  the  University  of  the  City  of  New  York,  wrote  an  exceedingly  in 
teresting  and  appreciative  essay  on  the  work  of  Mr.  David  Dudley 
Field.  It  was  published  and  COPYRIGHTED  by  the  Review  of  Reviews 
Co.  in  the  same  month.  By  the  courtesy  and  kindness  of  Mr.  Albert 
Shaw,  the  editor  of  that  magazine,  permission  is  given  to  use  the 
article,  and  the  following  is  accordingly  here  reprinted  : 


THE  WORK  OF  DAVID  DUDLEY  FIELD. 


BY   AUSTIN   ABBOTT. 

For  at  least  a  third  of  a  century  David  Dudley  Field 
was  the  most  commanding  figure  at  the  American  bar. 
Tall,  erect,  stalwart,  alert,  and  decided  in  movement, 
courteous  and  graceful  in  bearing,  he  impressed  the 
observer  at  once  as  a  man  of  marked  gifts  and  force. 
This  impression  every  advance  in  acquaintance  deep 
ened.  Those  who  knew  him  intimately  saw  an  imperious 
nature,  equipped  with  great  intellectual  power,  and  re 
strained  by  an  intuitive  appreciation  of  the  amenities  of 
social  life. 

Other  men  at  the  bar  have  perhaps  had  a  more  pro 
found  knowledge  of  the  technical  details  of  law,  but 
none  have  seen  the  law  more  truly  in  its  immediate  re 
lation  to  public  welfare.  Other  men  have  been  more 
devoted  to  research  and  gathered  richer  stores  of  erudi 
tion  to  throw  light  upon  the  law,  but  few,  if  any,  have 
known  so  well  how  to  inspire  others  in  research,  or 
with  such  good  judgment  to  select  from  its  fruits  that 
which  was  of  prime  importance  to  his  purpose.  There 
have  been  other  men  more  given  to  close  and  sustained 


80 

reasoning,  but  few  able  to  put  such  a  forceful  person 
ality  into  the  presentation  of  legal  reasoning.  There 
have  been  other  lawyers  with  more  notable  gifts  of  wit, 
humor,  satire,  and  invective,  but  few,  if  any,  whose 
prepossessing  presence  and  keen- minded  powers,  in  a 
personal  controversy,  delivered  harder  blows  or  sharper 
thrusts,  yet  with  so  much  respect  for  forensic  and 
parliamentary  proprieties.  Others  have  been  more 
eloquent  to  the  popular  appreciation,  but  few  have  had 
such  a  vigorous  grasp  of  thought,  or  such  convincing 
power  in  forcing  hesitating  minds  to  a  firm  conclusion. 

The  public,  however,  are  interested  not"  only  in  the 
professional  service  of  this  remarkable  man,  but  also  in 
the  greater  service  which  he  rendered  to  the  profession, 
and  through  the  profession  to  the  country  at  large,  in 
improving  the  law  itself. 

Notwithstanding  all  the  badinage  which  is  expended 
upon  lawj^ers,  the  obvious  truth  is  unobscured  that  the 
administration  of  justice  has  been  built  up  by  what  they 
have  done,  and  that  its  maintenance  is  due  to  them  ; 
and  that  all  the  community  enjoys  of  the  security  of 
law  and  the  suppression  of  social  violence  and  wrong 
is  owing  to  the  success  with  which  the  bar  and  the 
bench,  in  their  professional  functions,  maintain  that 
justice  which  Daniel  Webster  well  said  "is  the  great 
interest  of  man  upon  earth."  Mr.  Field,  in  the  midst  of 
arduous  duties  of  private  practice  and  antagonisms  into 
which  he,  to  a  degree  beyond  most  practitioners,  was 
occasionally  drawn,  labored  persistently  for  about  half 
a  century,  and  with  large  success,  to  improve  the  con 
dition  of  the  law  itself,  and  the  procedure  by  which  it 
is  applied  to  the  controversies  of  men. 

At  the  time  Mr.  Field  commenced  his  career  as  a  law 


81 

reformer  many  antiquated  forms  of  procedure,  handed 
down  to  us  from  the  English  law,  had,  in  the  great  ad 
vance  in  general  intelligence  and  judicial  ability,  become 
useless  incumbrances  to  the  prompt  and  inexpensive 

administration  of  justice. 

****##•# 

There  had  grown  up  in  the  mediaeval  history  of  the 
law  of  England  two  classes  of  judges,  the  common  law 
and  the  chancery.  Volumes  have  been  written  on  the 
origin  of  this  distinction  and  the  reasons  for  its  per 
petuation.  For  the  present  purpose  it  may  be  well 
characterized  as  the  distinction  between  routine  and 
discretion.  We  see  to-day  essentially  the  same  dis 
tinction  between  inflexible  rules  and  a  power  to  dis 
pense  with  such  rules  in  almost  all  organized  arrange 
ments  that  involve  delegation  of  power.  The  reason 
that  led  the  King  and  the  English  Parliament  to  sup 
port  two  distinct  systems,  one  of  common  law  judges 
who  were  bound  to  follow  the  law,  another  of  chancery 
with  power  to  administer  equity  beyond  the  law,  and 
even  to  restrain  any  particular  person  from  enforcing 
the  law,  when  injustice  would  result,  was  in  its  nature 
the  same  as  that  which  leads  a  great  railroad  company 
to  maintain  in  its  principal  passenger  station  a  ticket 
office  where  the  official  has  power  to  sell  tickets  but  no 
discretion  as  to  their  use,  and  upstairs  an  official  who 
has  no  power  to  sell  tickets  but  a  discretion  as  to  their 
use.  If  a  ticket  holder  lets  the  day  pass  and  desires  to 
use  his  ticket  on  a  later  day  than  the  date  it  bears,  the 
ticket  agent  must  refuse  the  application.  His  is  the 
office  of  routine.  lie  must  enforce  the  contract.  The 
applicant  is  sent  thence  to  the  superintendent  upstairs, 
where  he  may  state  his  case  and  rind  a  discretionary 


82 

power  which  can  interfere  with  routine  and  redress  the 
complaint.  If  a  customer  of  a  bank  wishing  to  with 
draw  paper  which  he  has  left  with  the  discount  clerk, 
and  which  has  been  passed  upon  by  the  board,  applies 
to  the  discount  clerk  to  have  it  returned  and  the  entry 
cancelled,  he  will  be  turned  away  from  that  wicket ;  he 
must  make  his  application  over  again  to  the  cashier 
or  president  or  some  officer  with  discretionary  powers. 
For  the  same  reason  the  common  law  judges  were 
compelled  by  penalties  and  punishments,  often  inflicted 
upon  them  in  early  times,  to  adhere  to  the  routine  of 
the  law,  and  administer  with  all  practicable  uniformity 
"  the  laws  and  customs  of  England  ; "  and  yet  at  the 
same  time,  appointed  by  and  responsible  to  the  same 
government,  was  the  Court  of  Chancery,  standing  nearer 
to  the  King  as  the  fountain  of  justice,  and  acting  as  his 
immediate  representative,  clothed  with  discretionary 
power  to  hear  complaints  that  routine  could  not  enter 
tain,  and  to  redress  unusual  grievances  even  to  the  ex 
tent  of  compelling  one  who  was  doing  unjustly,  in  a 
case  where  was  no  law,  to  make  redress,  and  even  to 
compel  one  who  was  using  the  routine  of  the  law  in  an 
unconscionable  manner  to  cease.  The  details  of  pro 
cedure  were  all  arranged  to  fit  this  double  system.  If 
a  suitor  prevailed  at  law,  he  was  entitled  absolutely  to 
costs  as  matter  of  right.  If  a  suitor  prevailed  in  chan 
cery,  it  was  in  the  discretion  of  the  court  to  make  him 
pay  the  costs  as  a  condition  of  obtaining  relief,  or  to 
impose  costs  on  the  defendant  as  if  he  had  been  sued 
at  law.  If  the  debtor  concealed  his  property  so  that 
the  sheriff  could  not  enforce  execution,  chancery  could 
compel  him  to  produce  and  surrender  it.  If  a  man 
preferred  to  break  his  contract  rather  than  perform  it, 


83 

and  the  law  only  allowed  damages  as  a  redress,  chan 
cery  could  compel  him  to  perform  it  or  go  to  prison, 
instead  of  allowing  him  to  pay  the  legal  price  he  pre 
ferred  to  pay  for  the  liberty  of  refusal.  And  so  on 
through  the  entire  circuit  of  rights  and  duties  which 
the  conscience  of  statesmen  recognized  outside  of  the 
old  limits  which  the  routine  of  common  law  had  de 
nned. 

•*  *  •*  #  •*  *  *• 

When  our  American  governments  were  established  a 
Supreme  Court  (being  a  court  of  common  law  only)  and 
a  Court  of  Chancery  were  founded  in  New  York  upon 
the  English  system,  and  the  same  complex  double  pro 
cedure  continued  down  to  1846.  In  the  formation  of 
our  Federal  government  powers  of  the  common  law 
courts  and  powers  of  a  court  of  chancery  were  both 
conferred  upon  the  United  States  Circuit  Court,  but  to 
be  separately  exercised  by  the  same  judge,  sitting  in  the 
same  court-room,  and  he  was,  therefore,  bound  by  the 
old  rules  of  routine  law  in  one  class  of  cases,  but 
clothed  with  the  discretionary  powers  of  a  chancellor 
whenever  those  were  invoked  by  a  bill  of  complaint 

addressed  to  him  as  if  he  were  a  chancellor. 

******* 

Mr.  Field  proposed  that  the  judge  having  the  com 
mon  law  jurisdiction  be  vested  with  the  powers  of  a 
chancellor,  and  might  exercise  them  in  a  common  law 
case  in  the  simple  manner  of  an  order  on  motion  on  a 
few  days'  notice. 

There  were  other  artificial  distinctions  in  procedure 
besides  this  duplex  system  of  courts,  which  had  become 
similarly  cumbrous  and  unnecessary. 

The  professional   reader   and   perhaps   some   others 


84 

may  be  interested  in  a  few  words  relating  to  the  chief 
of  these. 

It  is  a  principal  function  of  the  lawyer  to  know  in 
what  cases  an  action  will  lie  to  redress  a  wrong,  and  in 
what  cases  it  \vill  not ;  and  in  the  effort  to  systematize 
our  knowledge  upon  such  a  question  it  is  necessary,  as 
it  is  in  every  branch  of  science,  to  deal  with  classes  of 
cases,  and  perceive  by  a  process  of  generalization  what 
are  the  elements  essential  to  each  class.  Of  course  as 
the  complexity  of  human  relations  and  transactions 
giving  rise  to  controversy  increased,  the  classes  of  cases 
might  be  expected  to  increase.  This  process  of  classi 
fication  of  rights  of  action  came  very  early  to  be  of  great 
importance  in  the  administration  of  justice,  because  the 
writ  to  be  issued  to  bring  the  defendant  before  the 
court  was  required  to  state  or  at  least  indicate  to  him 
what  kind  of  an  action  he  would  have  to  respond  to, 
whether  an  action  to  compel  him  to  pay  a  debt,  or  to 
pay  damages  for  breaking  a  covenant,  or  to  answer  for 
a  trespass  on  land,  or  a  trespass  on  the  person  or  on 
personal  property,  and  also  in  cases  of  trespass  whether 
it  was  a  direct  trespass  by  force,  or  a  matter  of  negli 
gence,  and  the  like. 

Some  centuries  ago,  after  the  clerks  of  court  had  by 
issuing  successive  writs  in  a  great  many  cases  developed 
a  considerable  number  of  classes  of  cases,  Parliament, 
thinking  to  check  the  growth  of  litigation,  interposed 
and  forbade  the  invention  of  new  writs,  and  allowed 
them  to  be  issued  only  in  such  cases  as  those  in  which 
they  had  been  previously  issued,  or  in  like  cases.  The 
ingenuity  of  the  bar  and  of  the  clerks  of  court  was 
thereafter  exercised  with  some  effect  in  devising  writs 
for  new  cases  which  were  not  too  different  from  any- 


85 

thing  previously  known  to  be  called  "  like  cases, "but  the 
result  of  this  legislation  was  to  crystallize  pre-existing 
forms,  to  emphasize  the  necessity  that  each  new  action 
should  be  described  as  within  some  pre-existing  class. 
Another  effect  was  to  increase  vastly  the  number  of 
applications  to  the  chancellor  by  bills  of  complaint  to 
get  redress  in  new  kinds  of  grievance  where  there  was 
no  adequate  remedy  at  law,  because  no  allowable  writ. 
The  ingenuity  of  men  in  doing  injustice  in  new  forms 
went  on  developing,  but  Parliament  had  put  a  check 
on  the  ingenuity  of  the  common  lawyers  to  devise  cor 
responding  writs. 

This  intervention  of  the  legislative  power  thus  had, 
in  course  of  time,  these  two  great  effects,  both  probably 
unanticipated :  1,  the  arrest  of  the  development  of  the 
full  adaptation  of  common  law  to  the  needs  of  society  ; 
and,  2,  the  acceleration  of  the  development  of  a  more 
discreet  and  equitable  system  of  justice  through  resort 
to  chancery. 

•The  question  at  once  occurs  to  the  progressive- 
minded  reader  of  the  present  day,  how  could  an  ar 
rangement  ideally  so  absurd  as  two  systems  of  courts 
and  of  law  for  the  same  people  and  the  same  contro 
versies  hold  its  place  for  centuries  as  the  means  for 
administering  civil  justice  among  so  practical  people  as 
the  English  and  Americans  ? 

Two  reasons  may  be  suggested  to  the  reflective  reader 
as  we  pass  this  interesting  question  :  1,  the  lack  of  men 
in  the  profession  fitted  to  master  and  administer  both 
kinds  of  law  ;  and,  2,  the  reluctance  of  lawyers  who 
feel  proper  responsibility  for  the  interests  of  clients  to 
accept  a  new  and  untried  system  in  place  of  that  which 
is  settled  and  to  which  all  their  clients'  affairs  have  been 


86 

adjusted.  The  first  of  these  hindrances  perpetuated 
the  double  judicial  system  long  after  the  causes  of  the 
division  ceased.  Just  as  there  are  men  in  the  pro 
fession  admirably  fitted  by  temperament  or  training  or 
both  to  serve  as  advocates,  but  not  to  serve  as  judges, 
and  others  sure  of  success  and  usefulness  as  judges  and 
of  failure  as  advocates,  so  there  have  been  many  ex 
cellently  equipped  for  the  common  law  bar  or  bench, 
but  poor  material  for  chancellors  and  solicitors. 
Whether  this  has  been  for  lack  of  training  I  will  not 
undertake  to  say ;  but  the  profession,  even  since  the 
merger  of  the  two  systems,  are  every-day  observers  of 
the  fact  that  some  judges  give  better  satisfaction  to  the 
sense  of  justice  of  the  bar  while  sitting  with  a  jury  in 
actions  for  debt  or  damages,  and  others  uniformly  give 
better  satisfaction  while  sitting  to  determine  according 
to  an  equitable  discretion  controversies  which  inflexible 
rules  are  not  so  well  adapted  to  settle.  Whatever  we 
may  think  of  the  cause  of  the  long  persistence  of  this 
antiquated  division  of  judicial  labor,  we  need  not  be 
surprised  that  the  Americans  should  become  ready  to 
abolish  it  before  the  English  did,  nor  that  among 
Americans  the  great  State  of  New  York,  where  enter 
prise  and  conservatism  combine  in  the  strongest  forms 
for  safe  progress,  should  be  the  jurisdiction  in  which 
the  experiment  was  tried. 

Mr.  Field  was  admitted  to  the  New  York  bar  in  1828. 
He  devoted  himself  to  the  thorough  study  of  the  prac 
tice  both  in  the  common  law  courts  and  in  chancery. 
His  method  of  dealing  with  procedure  in  his  subse 
quent  code  shows  that  his  antagonism  to  the  old  sys 
tems  did  not  spring  from  ignorance  of  them  but  from 
a  complete  mastery  of  both,  a  just  appreciation  of  the 


87 

best  features  of  each,  and  a  comparison  of  them  with 
procedure  in  other  States,  especially  Massachusetts, 
which  had  no  chancery,  and  with  continental  European 
systems  founded  on  the  civil  law.  To  this  technical 
knowledge  of  existing  methods  was  joined  a  statesman 
like  appreciation  of  the  real  function  of  litigation  in 
superseding  private  controversy,  and  of  the  consequent 
necessity  that  remedial  justice  should  be  expeditious, 
simple,  and  inexpensive. 

The  then  existing  system  was  imbedded  beyond  legis 
lative  power  in  the  constitution  of  1821.  Mr.  Field 
commenced  in  1839  to  agitate  the  subject  of  reform. 
Five  years  afterward  the  constitutional  convention  was 
held,  which  formulated  the  provisions  that  cleared  the 
way  for  the  reform  that  Mr.  Field  desired  to  carry  out. 
The  majority  of  the  Judiciary  Committee  reported  a 
plan  embodying  Mr.  Field's  suggestion  of  a  single  court 
having  general  jurisdiction  both  in  law  and  equity. 
Charles  O'Conor,  the  leading  member  of  the  convention 
from  the  New  York  bar,  proposed  a  plan  different  in 
detail,  but  if  anything  more  radical  than  Mr.  Field's  in 
this  respect,  for  his  proposal  did  not  mention  law  and 
equity  as  if  different  functions  vested  in  the  same  court, 
but  simply  declared  the  "  judicial  power  of  the  State  " 
to  be  vested  in  the  one  court,  subject  to  appeal. 

Mr.  Field  was  not  a  member  of  the  convention,  but 
was  active  in  suggesting  and  advocating  the  change, 
and  his  memorial  to  the  succeeding  legislature  led  to 
the  appointment  of  a  commission  to  prepare  an  act  to 
simplify  the  procedure.  It  is  said  that  he  was  not  at 
first  appointed  on  this  commission  because  he  was  re 
garded  as  too  radical,  but  upon  the  occurrence  of  the 
first  vacancy  the  legislature  appointed  him  in  place  of 


88 

the  retiring  member,  and  he  immediately  devoted  him 
self  to  the  practical  part  of  the  task  he  had  undertaken. 

The  genius  of  Bentham,  who  had  given  years  of  time 
and  volumes  of  writing  to  criticising  and  satirizing 
English  legal  institutions,  may  fairly  be  said  to  have 
been  only  destructive.  The  mediaeval  absurdities  which 
lingered  in  the  "  perfection  of  human  reason  "  he  dis 
sected  with  great  skill  and  power  ;  but  his  suggestions 
as  to  details  of  what  ought  to  be  in  place  of  what  was, 
have  never  to  any  considerable  degree  commended 
themselves  to  men  concerned  with  maintaining  practical 
justice.  Mr.  Field's  genius  was  essentially  constructive. 
He  conceived  the  simple,  well  proportioned  system  that 
the  country  needed,  and  his  attack  on  what  was,  he 
carried  on  simply  to  make  way  among  the  old  law  for 
the  introduction  of  the  new. 

The  foundation  of  the  new  structure  was  laid  in  the 
declaration  that  the  Supreme  Court  has  general  juris 
diction  in  law  and  in  equity,  and  that  all  the  forms  of 
action  heretofore  existing  are  abolished. 

The  main  pillars  of  the  superstructure  were  the  fol 
lowing  regulations  : 

1.  Pleadings  are  to  state  facts,  and  state  them  truth 
fully,  as  it  is  proposed  to  prove  them  on  the  trial. 

2.  Equitable  defences  and  counter-claims  are  avail 
able  in  all  actions,  so  that  one   who   formerly  had  to 
bring  a  new  suit  in  chancery  to  enjoin  an  inequitable 
use  of  process  at  law  could  now  state  Jris  objection  as 
a  defence  to  the  action  brought  against  him. 

3.  The  power  exercised  by  the  chancellor  in  equity 
suits  to  compel  parties  to  testify  and  to  produce  their 
books  and  papers  was  conferred  on  the  court  for  all 
actions. 


89 

4.  If  the  evidence  at  the  trial  (which  now  must  be 
taken  there  openly  in  all  actions,  instead  of  the  secret 
method  of  exparte  examinations  allowed  in  equity)  varies 
from  the  pleading,  the  action  should  be  dismissed  only 
where  it  made  a  different  case  (for  then  the  adverse 
party  could  fairly  say  that  he  had  not  received  fair 
warning  of  what  facts  he  was  to  try) ;  and  that  any 
variance  short  of  that  might  be  either  disregarded  or 
be  cured  by  amending  the  pleading,  according  to  the 
seriousness  of  the  discrepancy,  and  that  the  court  might 
allow  amendment  to  supply  an  omitted  allegation. 

The  Code  of  Procedure  embodying  these  principles 
and  carrying  them  out  by  readjusting  the  mechanism 
of  an  action  accordingly,  made  in  the  form  first  adopted 
a  statute  of  371  sections,  filling  less  than  seventy  pages. 

Then  ensued  a  contest  bet  ween  the  conservatives  and 
fossils  of  the  bar  on  the  one  hand  and  the  progressives 
and  young  men  on  the  other  which  lasted  for  years. 
Before  the  objurgations  against  the  new  procedure  died 
out  the  code  had  been  adopted  in  some  twenty-four 
States  and  Territories,  and  in  other  apparently  con 
servative  States,  where  the  name  of  code  is  not  spoken, 
these  four  leading  principles  have  been  adopted  in 
statutes  designated  as  Practice  Acts,  &c.;  and  in  some 
of  these  instances  the  terse,  vigorous,  and  untechnical 
language  in  which  Mr.  Field  expressed  them  is  copied 
word  for  word.  The  extent  of  the  adoption  of  the  code 
as  such  does  not  measure  the  influence  of  his  work.  It 
is  not  too  much  to  say  that,  with  a  few  local  and  unim 
portant  exceptions,  the  main  features  of  the  new  pro 
cedure  have  been  accepted  throughout  the  country,  and 
have  been  accepted  in  other  respects  even  where  the 
distinctive  tribunals  and  the  contrast  between  suits  at 
law  and  in  equity  survive. 


90 

Mr.  Field's  reform  of  judicial  organization  and  pro 
cedure  was  only  the  first  step  in  a  scheme  of  general 
improvement  in  both  the  form  and  substance  of  the 
law.  His  conception  was  noble  in  its  breadth  and 
simplicity,  admirable  in  its  clearness.  Its  feasibility, 
or  the  usefulness  of  any  practicable  execution  of  it,  is 
the  great  question  which  divides  professional  opinion 
to-day. 

His  conception  was,  all  law  reduced  to  the  form  of  a 
statute,  so  that  a  man  could  carry  in  his  hand  the  printed 
record  of  all  that  the  State  ordained  for  the  regulation 
of  human  conduct. 

The  basis  of  his  arrangement  of  the  law  was  :  1,  a 
Political  Code,  to  contain  all  that  part  of  the  law  which 
public  officers  and  citizens  having  to  do  with  public 
officers  need  to  know  ;  2,  a  Civil  Code,  to  contain  all  of 
the  law  that  members  of  the  community  need  to  know 
in  regard  to  their  civil  rights,  duties,  and  responsibilities 
in  respect  both  to  personal  relations,  property,  and  ob 
ligations  ;  3,  a  Code  of  Procedure  (already  spoken  of) 
which  should  contain  all  of  the  law  that  courts  and 
lawyers  engaged  in  the  administration  of  civil  remedies 
need ;  4,  a  Code  of  Criminal  Procedure  for  the  courts 
and  bar  engaged  in  criminal  cases ;  and,  5,  a  Penal 
Code,  to  contain  the  law  of  crimes  and  the  correspond 
ing  punishments. 

The  success  and  the  finally  conceded  usefulness  of 
the  Code  of  Procedure  led  to  the  adoption  after  some 
years  of  the  Code  of  Criminal  Procedure  and  the  Penal 
Code.  The  great  contest  not  yet  concluded  has  been 
waged  over  the  Civil  Code.  The  ablest,  most  experi 
enced,  most  learned,  and  most  fit  experts  in  the  pro 
fession  are  divided  in  opinion  both  as  to  the  desira- 


91 

bleness  of  reducing  the  law  to  the  form  of  a  statute 
and  as  to  the  success  of  this  particular  effort  in  that 
direction. 

It  appears  to  me  probable  that  the  Civil  Code  would 
long  since  have  been  adopted  in  the  State  of  New  York, 
as  jt  already  has  been  in  several  other  States,  were  it 
not  for  two  reasons,  which,  if  I  am  not  mistaken,  have 
thus  far  turned  the  scale  against  it. 

In  the  first  place,  it  contains  many  new  provisions 
changing  the  existing  law. 

Another  cause  of  the  delay  to  adopt  the  code  I  think 
may  be  seen  in  the  general  want  of  confidence  in  legis 
lation  as  compared  with  the  work  of  the  courts.  If 
our  legislators  were  as  faithful  in  their  public  services 
as  our  judges,  the  community  would  be  more  ready  to 
accept  at  their  hands  a  body  of  law  reduced  to  the  form 
of  a  statute.  But  such  a  code  the  legislature  would  be 
likely  to  amend  every  year,  as  they  do  other  work  of 
their  own,  according  to  the  pressure  brought  to  bear 
upon  them ;  and  the  distrust  of  the  legislative  power 
which  recent  times  have  aroused  has  been  very  unfav 
orable  to  the  progress  of  codification. 

The  last  great  work  undertaken  by  Mr.  Field  was  the 
International  Code,  of  which  Mr.  Abbott  says  it  is  the 
crowning  work  of  his  life.*  Here,  with  an  energy  and 

*  It  is  stated  in  one  of  the  notices  printed  above  : 

"At  the  meeting  of  the  British  Association  in  Manchester  in  1866, 
Mr.  Field  proposed  a  revision  of  the  entire  body  of  international  law. 
He  was  appointed  then  a  member  of  a  committee  of  jurists  from  dif 
ferent  countries  to  make  a  revision  that  would  be  acceptable,  or  that 
should  become  the  basis  of  a  revision.  It  was  not  possible  for  the 
committee  to  act  in  concert,  aud  Mr.  Field  took  the  whole  work  upon 
himself.  The  result  of  his  labor  was  a  large  volume,  which  he  pre 
sented  in  1873  to  the  Social  Science  Congress.  It  was  entitled  '  Out 
lines  of  an  International  Code.'  It  attracted  the  attention  of  the 
most  eminent  jurists  in  the  world,  and  has  been  translated  into  French 
and  Italian." 


'£>-*- 


TJSITBH 


industry  which  left  all  the  other  members  of  the  com 
mittee  behind,  he  formulated  the  great  principle  of  the 
external  policy  of  nations  in  their  relations  with  each 
other,  in  a  clear  and  systematic  arrangement.  This 
statement  of  international  law  embodies  all  the  rules  of 
general  acceptance  found  in  the  writings  of  jurists  whose 
authority  is  recognized  at  the  present  day,  and  it  in 
cludes  also  a  codification  of  all  the  conventional  pro 
visions  common  to  many  treaties  between  different 
nations,  now  in  force  ;  so  that  it  may  be  truly  said  to 
embody  a  consensus  of  opinion  on  the  whole  field  of 
the  law  between  nations.  Its  close  adaptation  to  ex 
isting  law  has  made  it  already  an  accepted  authority 
often  cited  by  writers  on  international  law,  although  it 
has  not  yet  received  governmental  adoption. 

The  admirable  qualifications  of  Mr.  Field  for  the 
great  task  which  he  accomplished  would  not  have  been 
complete  without  his  advanced  conception  of  the  law 
itself.  He  was  not  a  "case  lawyer."  He  appeared  to 
survey  law  in  the  direct  relation  which  the  whole  and 
each  part  bears  to  public  welfare.  Without  discussing 
the  metaphysics  of  the  subject,  he  seemed  to  regard  the 
law  as  a  system  of  partly  developed  principles ;  a  few 
of  which  are  familiar  to  all  intelligent  men  ;  some  of 
which  have  been  through  long  discussion  reduced  to 
clear  and  concise  statement  capable  of  being  under 
stood  by  all  intelligent  men  ;  and  others  of  which  are 
yet  involved  in  uncertainty  and  controversial  discussion, 
but  which  he  held  must  be  reduced  to  the  same  form. 
He  dealt  with  the  law  as  a  system  of  principles.  I  can 
not  remember  in  our  conferences  a  single  instance  in 
which  he  mentioned  a  case  as  an  authority,  save  in  con 
sultations  in  which  he  was  simply  preparing  to  argue  a 


93 

case  in  court.  Conflict  and  confusion  in  authority  were 
no  obstacle.  He  wished  to  know  if  they  existed,  to 
take  the  measure  of  the  doubt,  and  to  clear  it  up  by  a 
statement  of  the  principle.  His  labors  in  codification 
were  in  the  knowledge  of  the  relative  value  and  place 
of  great  principles,  the  discernment  of  certainty  in  the 
midst  of  others'  doubt  or  dissension,  the  organizing 
faculty  which  saw  these  principles  in  a  scientific  rela 
tion  and  expressed  them  systematically  as  a  harmonious 
whole. 

His  work  will  never  be  forgotten,  because  it  forms  a 
conspicuous  part  of  the  progress  of  man  himself  toward 
that  intelligent  regulation  of  life  which  is  the  object  of 
all  law. 


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